Unpublished Disposition, 878 F.2d 1439 (9th Cir. 1988)

MEMORANDUM^* 

Appellant Endelicia Tovar-Sanchez ("Tovar-Sanchez") was indicted on charges of (1) conspiracy to possess with intent to distribute and distribute cocaine in violation of 21 U.S.C. §§ 841(a) (1) and 846 (Count I); and (2) illegal use of a communication facility in violation of 21 U.S.C. § 843(b) (Counts IV, VI and VII). A jury convicted Tovar-Sanchez on all counts. On appeal, she argues that: (1) the trial court abused its discretion in denying her motion for a continuance and substitution of counsel; (2) there was insufficient evidence to convict her of conspiracy; and (3) there was insufficient evidence to convict her of unlawful use of a communication facility. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

ANALYSIS

On the day of her trial, Tovar-Sanchez filed a motion asking the court for a continuance for the purpose of substituting counsel. Her then counsel of record, Doris Shockley, stated that she was ill and her representation of Tovar-Sanchez had been less than satisfactory. Another attorney, Don Stockett, had been retained to represent Tovar-Sanchez. Stockett was present in court and represented that due to the death of his father he had not been able to properly prepare for trial. Tovar-Sanchez also argued that because she had not been arrested until approximately two months after her codefendants had been arrested, she had only three months to prepare for trial while they had five.

The district court denied the motion on the grounds that the motion was untimely coming at such a late date, no good cause had been shown for the continuance, there would be prejudice to the government if the continuance were granted, and any prejudice to Tovar-Sanchez had been self-inflicted.

A district court's ruling on a motion for continuance is reviewed for an abuse of discretion. Ungar v. Sarafite, 376 U.S. 575, 589 (1964); United States v. Sterling, 742 F.2d 521, 527 (9th Cir. 1984). Where the defendant's sixth amendment rights are implicated, the court must balance several factors to determine whether the district court's denial was "fair and reasonable." United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986). Among the factors are: whether the continuance would inconvenience witnesses, the court, counsel or the parties; whether other continuances have been granted; whether legitimate reasons exist for the delay; whether the delay is the defendant's fault; and whether a denial would prejudice the defendant. Id.

Tovar-Sanchez contends that the district court declined to grant her motion for a continuance because it was faced with the dilemma that two defendants were at risk of not receiving a speedy trial.¹  She also argues that no prejudice would have resulted to the government from granting a continuance because the government's case was presented through federal drug agents and other local witnesses. Finally, she asserts that she made a good faith effort to retain counsel and that the district court did not give adequate weight to her right to choose her own counsel, thereby abusing its discretion.

The motion for a continuance was filed February 16, 1988 and heard the next day, which was the day set for trial. A trial confirmation hearing had been held February 10, 1988. Although the proposed new counsel, Stockett, had been retained to represent Tovar-Sanchez on February 4, he had not attended the trial confirmation hearing because of a death in his family. The district court stated:

The fact that defense counsel was ... retained on February 4th, which the Court notices was a week and a half ago on a Thursday, certainly notwithstanding the family problems, does not detract from the fact that at the very least, a motion should have been filed with this Court no later than February 5.

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And to wait now until basically 12 days later, the 12 days being from the date of February 4th when counsel was retained to counsel's filing of the notice of motion, motion for continuance February 16, I think causes the type of prejudice, which even though the Court recognizes Miss Tovar has a right to counsel of her choice, especially if she can afford to hire one, nonetheless, extreme prejudice would be caused to the government and substantial injustice would [result].

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(Vol. I, R.T., p. 15:3-24.)

The court also noted that Tovar-Sanchez had failed to show actual prejudice. Her existing counsel, Shockley, stated that "there have been substantial problems including the fact [Tovar-Sanchez] received a very good offer which I cannot even discuss with her because she wishes to discuss it with [proposed new counsel Stockett]. So I would have to say at this point, that my representation has not been what I would want it to be." R.T. 18. Tovar-Sanchez's existing counsel, Shockley, did not represent to the court that she was unprepared or that she would be unable to proceed with the case.

We conclude that the district court did not abuse its discretion in denying the motion for a continuance.

In reviewing the sufficiency of evidence, "the relevant question is whether, after 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); United States v. McClendon, 782 F.2d 785, 790 (9th Cir. 1986).² 

Tovar-Sanchez argues that there is no evidence that she committed an overt act in furtherance of the conspiracy, that her knowledge of the amounts of cocaine to be purchased was not tantamount to committing an overt act, and that she was not present at the site of the drug sale. She reasons that because there is this insufficiency of evidence to support her conspiracy conviction, her conviction of the unlawful use of a communication facility must also be set aside. The government counters that the recorded telephone conversations with the government informant prove her active involvement in the conspiracy and her unlawful use of a communication facility.

To prove a conspiracy, the government must show: (1) an agreement; (2) to engage in criminal activity; and, (3) one or more overt acts in furtherance of the conspiracy. See United States v. Monroe, 552 F.2d 860, 862 (9th Cir. 1977), cert. denied, 431 U.S. 972 (1977). Circumstantial evidence may be sufficient to prove the existence of a conspiracy by showing that defendants acted together in furtherance of a common illegal goal. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). Once the conspiracy is established, the government must prove the defendant's connection to the conspiracy beyond a reasonable doubt. United States v. Dunn, 564 F.2d 348, 357 (9th Cir. 1977). However, that connection is sufficient even if it is only slight. Id.

Tovar-Sanchez had three telephone conversations with the government informant. In the first call, she told the informant that she was meeting with "the man," the same term used by her husband, Jose Luis Tovar, to describe his source of cocaine. In the second call, she told the informant that she had received a call from "the lady, the one I go around with here arranging this thing...." Later during the same conversation she told the informant that "the lady said yes ... even if it's five she told me." In the third call, Tovar-Sanchez stated "six" was all that could be done right then. Her husband, Jose Luis Tovar, was found with six kilograms of cocaine at the time of his arrest.

We conclude that there was sufficient evidence for a rational jury to conclude that Tovar-Sanchez was connected with the conspiracy and upon which to base her conviction of that charge.

In order to prove a violation of 21 U.S.C. § 843(b) (the communications facility count), the government must show knowing or intentional use of a communications facility to aid or facilitate the felonious distribution of narcotics. United States v. Reese, 775 F.2d 1066, 1074 (9th Cir. 1985). The record indicates that Tovar-Sanchez was a willing participant in the telephone conversations with the informant. (See United States v. Reese, 775 F.2d at 1074 ("facilitate" means to make easier or less difficult through "willful participation.")).

We conclude there was sufficient evidence to support Tovar-Sanchez's conviction of violating 21 U.S.C. § 843(b).

AFFIRMED.