Unpublished Disposition, 867 F.2d 614 (9th Cir. 1988)

MEMORANDUM^* 

Appellant Alfred Lopez ("Lopez") appeals his criminal convictions of conspiracy to possess marijuana with intent to distribute, 21 U.S.C. §§ 841(a) (1) and 846, and possession of marijuana with intent to distribute, 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2 (aiding and abetting). Lopez contends the district court abused its discretion in denying his motion for a continuance the day before trial and in denying a motion for new trial following his conviction. Lopez further argues there was insufficient evidence of specific intent to support his convictions, and that the minimum mandatory sentencing provisions of 21 U.S.C. § 841(b) (1) (B) are unconstitutional.

FACTS

Lopez was stopped by U.S. Border Patrol agents at approximately 2:30 a.m. on December 18, 1987. He had been driving his Jeep with its headlights off in a secluded area approximately thirty-two miles east of Calexico, California and 150 miles north of the U.S.-Mexico border. Traveling with Lopez was a passenger, Willie Ray Jackson. Both men had been drinking. Several duffle bags were piled on the open back seat of the Jeep. One of the agents placed a hand on a duffel bag, felt tightly wrapped packages within and opened the bag. The bag contained marijuana. Both men were arrested.

At the time of his arrest, Lopez had $1,745 in cash in his possession. The duffel bags in the Jeep contained 254 pounds of marijuana. Lopez was the registered owner of the Jeep and was driving it at the time he and Jackson were stopped. Among Lopez's personal possessions were the business cards of a physician and two counselors at a mental health clinic.

Lopez and Jackson were indicted on charges of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952, 960 and 963; importation of marijuana in violation of 21 U.S.C. §§ 952 and 960; conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 846; and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. Following a jury trial, Lopez was convicted of conspiracy to possess marijuana with intent to distribute and possession of marijuana with intent to distribute. Jackson was convicted of the lesser included offenses of simple possession and conspiracy to possess marijuana in violation of 21 U.S.C. § 844(a).

We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

ANALYSIS

Lopez contends the district court erred in denying his motion for a continuance one day before his trial was scheduled to begin. The motion was filed after counsel for Lopez visited the government impound site in Calexico, where Lopez's Jeep was being stored, four days before the scheduled trial date. During the inspection, Lopez's counsel discovered the business cards belonging to the physician and the mental health counselors. Counsel then learned Lopez had suffered a stroke or heart attack within the year preceding his arrest. He moved for a continuance based on the theory that Lopez may have been under the influence of both alcohol and medication when he was arrested and therefore may have been unable to form the specific intent necessary to commit the crimes charged. The district judge gave Lopez until the end of the day to locate any evidence to support this theory. Lopez's counsel failed to present any such evidence and the court denied the motion.

A trial court's decision to grant or deny a continuance will not be disturbed on appeal absent clear abuse of discretion. United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986); United States v. Flynt, 756 F.2d 1352, 1358, modified on other grounds, 764 F.2d 675 (9th Cir. 1985). In reviewing the denial of a defendant's motion for a continuance, we consider four factors: (1) the diligence with which the defendant prepared his defense prior to the date set for hearing; (2) the likelihood that granting the continuance would have satisfied the need for a continuance; (3) the inconvenience to the trial court which would result from granting a continuance; and (4) the extent to which the defendant was prejudiced by the denial. Flynt, 756 F.2d at 1358-59.

Nothing in the record indicates counsel for Lopez did not act diligently in preparing his client's case. The absence of any evidence showing that Lopez was on medication at the time he was arrested, or that any medication he may have been taking would have any effect on his ability to form a specific intent when mixed with alcohol, indicates granting the continuance would have served little useful purpose. Although Lopez contends that his subsequent psychiatric evaluation provides evidence of organic brain impairment, there is no showing that this impairment affected Lopez's ability to form a specific intent. Lopez's reliance on United States v. Barrett, 703 F.2d 1076 (9th Cir. 1983) is misplaced. In Barrett the government made available to the defendant its expert witness's report two days before trial, leaving the defendant with little time to gather evidence to attack the credibility of the expert. Barrett at 1081. We specifically held that a continuance was not required to allow the defendant to locate an expert witness of his own. Id.

In this case, Lopez contends he should have been granted a continuance to obtain information regarding his past illness. The district court agreed to give Lopez the continuance if he could come up with any evidence indicating there was some chance that he had been taking medication at the time he was arrested, or that he had some organic brain impairment sufficient to affect his ability to form a specific intent. No such evidence was forthcoming over approximately a twenty-four hour period. The district court noted that the trial court would be inconvenienced if the motion were granted, because there was no time on the court's docket to reschedule the case for trial in the foreseeable future. RT at 6. Additionally, there is no evidence Lopez was prejudiced by the denial. Even after his trial, the most Lopez could come up with was some equivocal evidence of organic brain impairment, a factor which we discuss hereafter.

The district court did not abuse its discretion in denying Lopez's motion for a continuance.

A psychologist examined Lopez following his conviction. The contents of the resulting report were the basis for Lopez's motion for a new trial. Lopez contends the report reveals he has a degree of organic brain impairment, and that this finding constitutes new evidence sufficient to warrant a new trial.

The denial of a motion for a new trial based on new evidence is reviewed for abuse of discretion. United States v. Krasny, 607 F.2d 840, 845 (9th Cir. 1979), cert. denied, 445 U.S. 942 (1980). A defendant seeking a new trial on this ground must meet five requirements: (1) the evidence relied upon must be newly discovered; (2) there must be facts shown by the motion from which the court may infer diligence on the part of the movant; (3) the new evidence must not be merely cumulative or impeaching; (4) material issues must be involved; and (5) the evidence must be such that a new trial would probably result in acquittal. Krasny, 607 F.2d at 843.

The district court correctly held that the psychological report was not newly discovered evidence because its conclusions were based on Lopez's verbal skills. The report concluded Lopez may suffer organic brain impairment based on a disparity between intellectual potential and low verbal function. RT at 500. The court found that because Lopez's verbal skills were the same before and after trial, the report's contents could not be newly discovered evidence. The court further noted that the evidence was vague, did not address Lopez's ability to form an intent, did not contain any information regarding medication or aggravation of any existing condition, and therefore would not likely result in an acquittal in any new trial. RT at 501.

The district court did not abuse its discretion in denying Lopez's motion for a new trial.

Lopez argues that the evidence of specific intent was insufficient to convict him of conspiracy to possess with intent to distribute and possession with intent to distribute because his passenger, Jackson, was found guilty of lesser offenses on the same facts. We review these allegations viewing the evidence in the light most favorable to the government to determine whether any rational trier of fact could have found Lopez guilty beyond a reasonable doubt. United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.), cert. denied, 57 U.S. Law Week 3333 (1988); Jackson v. Virginia, 443 U.S. 307, 324 (1979).

Contrary to Lopez's argument, the facts pertaining to him and to Jackson were different. There was sufficient evidence from which a rational jury could find Lopez guilty beyond a reasonable doubt of the crimes of which he was convicted.

A person may be convicted of illegal possession where it is shown he exercised dominion and control over the contraband. Savinovich, 845 F.2d at 837. Dominion and control may be proved by evidence of actual physical custody or constructive possession. United States v. Castillo, No. 87-5042, slip op. at 14837 (9th Cir. Dec. 2, 1988). Lopez owned the Jeep and was driving it when he was arrested. The Jeep contained 254 pounds of packaged marijuana. A rational jury could find Lopez had dominion and control over the marijuana. Intent to distribute may be inferred from the purity, price and quantity of the drug possessed. Savinovich, 845 F.2d at 838. Based upon the 254-pound quantity of marijuana, a rational jury could infer Lopez intended to distribute it.

The evidence was sufficient to support Lopez's convictions.

Lopez finally argues his sentence under the minimum mandatory sentencing provisions of 21 U.S.C. § 841(b) (1) (B) unconstitutionally violates his rights to due process, equal protection and freedom from cruel and unusual punishment. Lopez was sentenced to the minimum mandatory sentence under section 841(b) (1) (B) of five years for possession with intent to distribute, to run concurrently with a five-year sentence for conspiracy to possess with intent to distribute.

We have addressed Lopez's argument in United States v. Adler, No. 87-3092, slip op. at 14707 (9th Cir. Nov. 30, 1988); United States v. Ramos, No. 87-3074, slip op. at 13981 (9th Cir. Nov. 9, 1988); United States v. Klein, No. 87-3094, slip op. at 13818-831 (9th Cir. Nov. 4, 1988); and Savinovich, 845 F.2d at 838-41. We hold here, as we have held previously, that the minimum mandatory sentencing provisions of 21 U.S.C. § 841(b) (1) (B) are not unconstitutional.

AFFIRMED.