Unpublished Disposition, 872 F.2d 431 (9th Cir. 1987)

MEMORANDUM^* 

Jay William Pinder ("Pinder") appeals his conviction following a jury trial for conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. Pinder challenges the sufficiency of the evidence against him and contends the district court erred in (1) denying his request for an alibi instruction; (2) denying his motion for a new trial; and (3) denying his motion for judgment of acquittal. We affirm.

* FACTS AND PROCEEDINGS

A superseding indictment charged Franz Magdalener ("Magdalener") and eleven other individuals, including Pinder, with conspiracy to distribute cocaine in Montana and elsewhere. At trial, Magdalener testified that in 1985 he and Terry Norman Toepper ("Toepper"), a government informant, discussed obtaining a large amount of marijuana for importation into the United States. The marijuana operation was to be financed by the sale of cocaine brought from Florida to Montana. Toepper resided in Montana, and Magdalener in Florida. In cooperation with the FBI, Toepper agreed to wear a recording device and record his conversations with members of the distribution scheme.

Toepper traveled to Florida to obtain one kilogram of cocaine. There he met Rusty Ward on December 12, 1986, at the Inlet Bar. Toepper gave Ward the keys to his rented car. Ward then gave the keys to Pinder. Pinder left the bar and returned approximately twenty minutes later. Pinder returned the keys to Ward, who returned the keys to Toepper. Ward told Toepper that a briefcase containing the kilogram of cocaine had been placed in the rental car which was now parked behind the bar. The kilogram of cocaine was then recovered by the FBI upon Toepper's return to his hotel. The intended destination of this kilogram of cocaine was Montana.

At the close of the government's case and again at the close of his own case, Pinder's motion for judgment of acquittal was denied. The jury returned a verdict of guilty against Pinder and his codefendant Meyers. Pinder's motion for a new trial was denied.

On September 3, 1987, Pinder filed a notice of appeal. Thereafter, he discovered "new evidence" and this court granted a limited remand for the purpose of allowing the district court to reconsider his motion for a new trial in light of this evidence. This motion was also denied by the district court.

II

ANALYSIS

On appeal Pinder challenges the district court's refusal to give an alibi instruction. We review the district court's refusal to give a proposed jury instruction for abuse of discretion. United States v. Makhlouta, 790 F.2d 1400, 1405 (9th Cir. 1986); United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

Pinder alleges that the only evidence linking him to the conspiracy to distribute cocaine in Montana and elsewhere was his presence at the Inlet Bar on December 12, 1986. During the trial, Pinder called six witnesses to establish that he was somewhere else at the time of the sale.¹  Pinder contends that this evidence entitled him to the alibi instruction. We disagree.

When a defendant produces evidence that he was elsewhere, in a case requiring his presence at a particular time and place, an alibi instruction must be given so as to inform the jury that the government's burden of proof covers the defense of alibi as well as all other phases of the case. United States v. Ragghianti, 560 F.2d 1376, 1379 (9th Cir. 1977). However, " [p]resence need not be shown to prove conspiracy." See United States v. Lustig, 555 F.2d 737, 751 (9th Cir.), cert. denied, 434 U.S. 1045 (1978). The district court correctly stated that "an alibi instruction is unnecessary in a conspiracy charge where the defendant's connection with the conspiracy includes more than one act and the defendant's alibi defense only covers one of the charged acts." United States v. Pinder, No. CR-87-8-H-CCL (D. Mont. 1987) (memorandum and order denying motion for new trial). In this case the government offered other evidence, including phone toll records and coconspirator declarations which, in and of themselves, would have been sufficient for the jury to find that Pinder was a member of the conspiracy. Thus, the district court did not abuse its discretion; the alibi instruction was unnecessary.

The decision to grant or deny a motion for a new trial is within the sound discretion of the trial judge. United States v. Kenny, 645 F.2d 1323, 1343 (9th Cir.), cert. denied, 452 U.S. 920 (1981). Five criteria must be satisfied in order for the moving party to prevail: (1) the evidence relied on must be newly discovered; (2) the movant must have been diligent in attempting to secure evidence; (3) the evidence must be more than merely cumulative or impeaching; (4) the evidence must be material; and (5) the evidence must be of such a nature that, in a new trial, the defendant would probably be acquitted. Kenny, 645 F.2d at 1343; United States v. Krasny, 607 F.2d 840, 842-843 (9th Cir.), cert. denied, 445 U.S. 942 (1980).

1. False Testimony and Withholding of Exculpatory Evidence

In support of its case the government offered into evidence telephone calls from coconspirator Miller to Pinder. The government focused on one particular call at 3:26 p.m. on December 12, 1986 and argued that in this call Miller set up the "deal" at the Inlet Bar and arranged for Pinder to deliver the cocaine. The call lasted approximately one minute.

Following the trial, Pinder received information from Miller that the 3:26 p.m. call was not to arrange a deal but to warn Pinder to avoid Meyer as Miller believed Meyer was working with law enforcement officials. This information had been communicated to the government by Miller during plea discussions prior to Pinder's trial. Pinder contends that had he known about this statement he could have disputed the government's theory in the case and thus his due process rights were violated under Brady v. Maryland, 373 U.S. 83, 87 (1963).

The government is required to provide any favorable evidence which is material either to guilt or punishment. United States v. Bagley, 473 U.S. 667, 674-75 (1985). If the failure to do so deprives the defendant of a fair trial, reversible error has been committed. See Brady, 373 U.S. at 87; Bagley, 473 U.S. at 674-675. Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682.

In applying the foregoing authorities, the district court held that Miller's statement regarding the substance of the call harmed rather than helped Pinder's case. The district court stated:

[T]he statement is not favorable to Pinder. On the contrary, the fact that Miller was attempting to warn him of a potential "bust" is clear evidence of Pinder's involvement in the conspiracy. If Pinder was not trafficking in cocaine he would need no warning to stay away from a purported buyer who was suspected to be an informant.

We agree with the district court's reasoning. There is no reasonable probability that, had the true purpose of Miller's call been disclosed to the defense, the result of Pinder's trial would have been different. Id.

Pinder also asserts that the trial court erred in denying his request for a new trial based on his contention that Toepper committed perjury at trial, and that without the perjured testimony there was insufficient evidence to support his conviction. In the alternative, Pinder contends that Toepper's alleged perjury tainted Pinder's conviction. In either case, to prevail Pinder must show that Toepper committed perjury. The party seeking a new trial carries the significant burden of proving such action is warranted. United States v. Steel, 759 F.2d 706, 713 (9th Cir. 1985). A careful review of the record indicates that any proof of Toepper's perjury is inconclusive at best. As Pinder failed to meet his initial burden of proving perjury, the "new evidence" never materialized. The district court did not abuse its discretion in denying Pinder's request for a new trial on remand and its decision will not be disturbed.

Pinder argues that evidence was insufficient to establish that he knowingly participated in the conspiracy to distribute cocaine. "In assessing the sufficiency of the evidence, our inquiry is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988). "The essential elements of a conspiracy are (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. (citations omitted). Once the existence of the conspiracy is shown, evidence establishing beyond a reasonable doubt a knowing connection of the defendant with the conspiracy, even though the connection is slight, is sufficient to convict him of knowing participation in the conspiracy. (citations omitted). However, the connection to the conspiracy must be shown to be 'knowledgeable'; that is, 'the government must prove beyond a reasonable doubt that the defendant knew of his connection to the charged conspiracy.' " Id. (emphasis in original).

The evidence against Pinder is sufficient to support his conviction. The government established the existence of a conspiracy as alleged in the indictment to " [f]ind sources of controlled substances, including marijuana and cocaine [and] [s]ecure buyers ... in Montana and elsewhere [and] [t]ransport ... to Montana and elsewhere [and] distribute" the cocaine and marijuana for profit. To sustain a conviction against Pinder, the evidence had to show Pinder's knowing connection to this conspiracy, however slight.

Although no evidence was offered by the government specifically showing that Pinder had knowledge that the cocaine was destined for Montana, this is not fatal to the government's case. As illustrated by the language contained in the indictment, the charge was of a conspiracy to distribute cocaine in Montana and elsewhere. Given the quantity, and 87% pure quality, of the cocaine involved in this case, the jury could reasonably conclude that Pinder knew the cocaine was not likely to stay in Florida but was destined for redistribution elsewhere. Meyers, 847 F.2d at 1414; United States v. Smith, 609 F.2d 1294, 1300 (9th Cir. 1979); see also United States v. Smith, 832 F.2d 1167 (9th Cir. 1987).

AFFIRMED.