Unpublished Disposition, 876 F.2d 897 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 876 F.2d 897 (9th Cir. 1989)

UNITED STATES of America, Plaintiff/Appellee,v.Rigoberto QUINTERO-ALVARADO, Defendant/Appellant.

No. 88-5048.

United States Court of Appeals, Ninth Circuit.

Submitted April 18, 1989.Decided June 9, 1989.

Before BARNES, WALLACE, and SKOPIL, Circuit Judges.


MEMORANDUM** 

Rigoberto Quintero-Alvarado appeals his convictions for conspiracy to distribute heroin and for possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and 846 (1982). He contends there is insufficient evidence to support the convictions. We disagree. There is sufficient evidence for the jury to have found beyond a reasonable doubt that Quintero-Alvarado was connected to the conspiracy and that he and his co-conspirator possessed heroin with the intent to distribute. We affirm.

To establish a conspiracy the government must prove (1) an agreement to accomplish an illegal purpose; (2) an overt act in furtherance of the purpose; and (3) the intent to commit the underlying offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). The government proved each of these elements. Undercover agents met twice with Quintero-Alvarado's codefendant to arrange to purchase heroin. That codefendant admitted at Quintero-Alvarado's trial that at least one other person was involved with him in selling drugs. Quintero-Alvarado was present in the car when an agent arrived to purchase ten ounces of heroin. During that transaction, Quintero-Alvarado assured the agent that prior samples given to the agent were taken from this same package of heroin and that Quintero-Alvarado had personally weighed the package. The jury reasonably construed Quintero-Alvarado's actions and statements as evidence of his participation in the conspiracy.

A defendant may be found to possess contraband whenever there is evidence to support an inference that the defendant exercised dominion and control. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986). Moreover, a co-conspirator is criminally liable for any substantive offenses committed by co-conspirators in furtherance of the unlawful activity. United States v. Crespo de Llano, 838 F.2d 1006, 1019 (9th Cir. 1987).

Here, Quintero-Alvarado's statement that he weighed the heroin indicates a degree of dominion and control. Furthermore, his co-conspirator clearly possessed the heroin with intent to distribute at the time of Quintero-Alvarado's participation in the conspiracy. This factor alone is enough to uphold Quintero-Alvarado's conviction for possession with intent to distribute. See id. (defendant's conviction for possession of cocaine sustained on evidence that co-conspirator possessed cocaine).

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

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