Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1989)

MEMORANDUM^* 

John McElvy was convicted at a jury trial of conspiracy to distribute cocaine. He appeals the conviction, contending that (1) the trial court should have given a multiple conspiracy instruction to the jury, (2) the trial court should have granted McElvy's motion for judgment of acquittal, and (3) the prosecuting attorney improperly commented during closing argument on McElvy's decision not to testify. We affirm on each issue.

FACTS

The Conspiracy and Testimony on McElvy's Participation

John McElvy was charged with conspiring to distribute cocaine along with eleven other people. The government alleged that the conspiracy began sometime during the summer of 1985 and ended on February 6, 1987, when a major player in the conspiracy was arrested. McElvy was tried with Rusty Ward, and two other conspirators were tried together prior to McElvy and Ward's trial. The remaining co-conspirators plead guilty or were not charged; some cooperated with the government.

The government's involvement in the conspiracy began in October 1986 when co-conspirator Terry Toepper, believing that he was about to be turned in for drug dealing, approached Special Agent Bernie Hubley of the Montana FBI. He advised Hubley of his involvement in a conspiracy to obtain cocaine in Florida and sell it in Montana, and offered to cooperate with the FBI. The conspiracy began when, according to Toepper, he and Franz Magdalener, the original conspirators, agreed in the summer of 1985 to help finance a planned marijuana smuggling venture by obtaining and distributing cocaine. Hubley became involved in the conspiracy by helping to finance the cocaine deals and participating in their operation.

During 1986, the various co-conspirators traveled between Florida and Montana on conspiracy-related business; and money and drugs flowed between the two states. McElvy's alleged involvement began in the summer of 1986, when he traveled to Montana with Magdalener, allegedly on conspiracy business. Toepper and Magdalener both testified that the only reason for McElvy to come to Montana was to participate in the drug deal. While in Montana, McElvy discussed distributing cocaine with Toepper and Magdalener over drinks at a bar. McElvy held himself out to Toepper to be the source of the cocaine sent from Florida to Montana. McElvy would obtain the cocaine, Magdalener would get it to Montana, and Toepper would sell it there.

McElvy also was involved in two phone conversations related to the conspiracy. He was not the intended recipient of either phone call, but both can be understood as demonstrating his knowledge of conspiracy events. They also indicate that McElvy participated in the conspiracy by transporting people and drugs to and from the airport.

The Defense at Trial

At trial, McElvy's defense focused on countering the circumstantial evidence against him. First, evidence demonstrated that McElvy was clearly an addict, and he used his addiction to cast doubt on the evidence of intent. Second, McElvy claimed he was in the wrong place at the wrong time--that he was guilty only of associating with people who were involved in the conspiracy and was not a conspirator himself. McElvy elicited testimony that he never gave the conspirators any drugs and that the co-conspirators would not have agreed to McElvy's participation because he was unreliable. In addition to his attack on the charged conspiracy, McElvy also claimed in various evidentiary disputes before the judge that there could have been several conspiracies instead of one; but he did not argue this to the jury. Finally, the defense asserted most strongly that McElvy never entered into agreements with co-conspirators, nor did he intend to. Although Toepper testified that McElvy and Magdalener had an agreement, Toepper and Magdalener each stated that he had no "agreement" with McElvy. "Agreement," however, carried formal connotations in the testimony's context.

The Multiple Conspiracy Instruction

McElvy requested that the court give the jury an instruction on multiple conspiracies. At the charge conference, he objected to its exclusion. At trial, the judge gave both McElvy and codefendant Ward the chance to object again to the jury instructions as given. Ward's counsel stated that he had nothing further to add to his objections made at the charge conference, and the judge incorporated those objections. Although McElvy had made objections at the charge conference, neither the judge nor McElvy's counsel recalled McElvy making any, and so none were incorporated.

The Closing Argument

During the prosecutor's closing argument, the following interaction occurred:

[U.S. ATTORNEY:] Let's ask ourselves the question, why didn't the Government play the 12/12 tape? Number one, it's kind of long, and because for no other reason, all the people on the 12/12, with the exception of Rusty Ward, took the witness stand.

[WARD]: Your Honor, I'm going to object to that. Move for a mistrial.

THE COURT: Overruled. Denied.

[U.S. ATTORNEY]: It's explaining to you ladies and gentlemen the people that were on the tape, John DeCicco, Tony Meyers, Terry Toepper, took the witness stand. They told you what happened that day. It would have been cumulative and regurgitation of the same thing. You were able to hear their testimony live, ladies and gentlemen. Able to hear it live what they did that day, where they'd gone, where they went.

The court immediately overruled Ward's objection that the prosecutor improperly commented on his failure to testify and denied the motion for mistrial. McElvy did not join the objection. Later, the judge offered to give a curative instruction, though he continued to maintain that it was not necessary. Ward declined, not wanting to call further attention to the comment. McElvy remained silent on the matter.

JURISDICTION

This court has jurisdiction over federal criminal appeals under 28 U.S.C. § 1291.

DISCUSSION

I. Refusal to Give Jury Instruction on Multiple Conspiracies

This court reviews de novo a trial court's refusal to give a requested jury instruction on a defendant's legal theory, if the defendant properly objected to the refusal at trial. United States v. Anguiano, 873 F.2d 1314, 1317 (9th Cir. 1989). The government contends that this court should "strictly comply" with Federal Rule of Criminal Procedure 30 and find that McElvy did not object properly at trial, making the standard of review plain error.

McElvy did specifically object to the lack of a multiple conspiracy instruction, however, at the charge conference. That objection together with Ward's incorporated objection made the judge aware of McElvy's position, fulfilling the purpose of the contemporaneous objection rule. This circuit has treated an objection to the judge's decision not to give a jury instruction, made at a hearing on jury instructions, as satisfying the Rule 30 criteria. Id. at 1317 n. 1. De novo review is appropriate.

McElvy requested a multiple conspiracy instruction like the Ninth Circuit's Model Jury Instruction 5.01B, which reads:

You must determine whether the conspiracy charged in the indictment existed, and, if it did, who its members were. If you find that the conspiracy charged did not exist then you must return a not guilty verdict, even though you may find that some other conspiracy existed. Similarly, if you find that any defendant was not a member of the charged conspiracy, then you must find that defendant not guilty, even though the defendant may have been a member of some other conspiracy.

The defendant is entitled to a multiple conspiracy instruction when the indictment may appear to vary from the trial proof. United States v. Perry, 550 F.2d 524, 533 (9th Cir.) (lack of multiple conspiracy instruction not reversible error because indictment did not vary from trial proof), cert. denied, 434 U.S. 827 (1977); Ware v. United States, 431 U.S. 918 (1977). The theory must be supported by law and have some foundation in the evidence. See United States v. Linn, 880 F.2d 209, 217-18 (9th Cir. 1989) (jury could not have found separate conspiracies apart from larger charged conspiracy). The instruction should be given if the jury could find multiple conspiracies separate from the single charged conspiracy. See United States v. Eubanks, 591 F.2d 513, 518 (9th Cir. 1979) (instruction should have been given); see also United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir. 1982) (judge instructed on multiple conspiracies). The instruction is appropriate, however, only if the jury could rationally find the separate conspiracies while not finding the charged single conspiracy, since the proof must vary from the indictment. The failure to give the instruction "is error only if the instructions as a whole, considered in the context of the entire trial, did not fairly and adequately cover the issues." Anguiano, 873 F.2d at 1317.

Appellant contends that evidence existed sufficient for the jury to find separate conspiracies rather than the single charged conspiracy and suggests six possible ones. Three concern marijuana. McElvy was charged with conspiracy to distribute cocaine, not marijuana. Evidence on marijuana was relevant only as it related to the conspiracy charge, and the instruction on the single charged conspiracy adequately explained its relevance to the jury.

The other three possible separate conspiracies concern cocaine or, in one case, an unnamed drug. Although McElvy does not name himself as connected with the cocaine conspiracies in his list, the evidence was sufficient for the jury to do so. The trial proof did not vary from the single conspiracy charged in the indictment. The jury could not rationally have believed that each separate cocaine deal constituted a separate conspiracy when the deals were part of one pipeline, they were conducted generally in the same way, there were players common to most events, and the players' discussions and actions treated the conspiracy events not as isolated deals but as part of one ongoing activity with a single purpose: to raise money to underwrite the marijuana smuggling venture.

II. Denial of Motion for Judgment of Acquittal

In reviewing a criminal verdict, a court must determine "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); United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987). Once a conspiracy is established beyond a reasonable doubt, only a slight connection to the conspiracy by the defendant is necessary to convict, United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir. 1988); United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987); but the defendant must know of the connection, Meyers, 847 F.2d at 1413.

At trial and on appeal, McElvy has focused most strongly on the requirements that he agree and intend to agree with the co-conspirators in order for him to be guilty of conspiracy. Association with the conspirators, or knowledge of the conspiracy without intent to conspire and agreement to accomplish the illegal objective, is not enough to justify guilt on a conspiracy charge. United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980) (finding no agreement because the alleged conspirator set conditions that the other party would not accept). "Proof," however, that McElvy "knew he was plotting in concert with others to violate the law [is] sufficient to raise the necessary inference that he joined in the overall agreement." United States v. Thomas, 586 F.2d 123, 132 (9th Cir. 1978).

The evidence was sufficient at trial for a jury to find that McElvy intended and agreed to participate in the conspiracy to distribute cocaine. Undisputably, McElvy himself claimed to be the cocaine supplier and discussed the pipeline plan with the two main players, Toepper and Magdalener. Although Toepper and Magdalener each testified that he had no agreement with McElvy, the formalized understanding of agreement that defense counsel seemed to be evoking is not necessary for a conspiracy to exist. The factfinder can infer agreement from the conspirators' words and actions. The jury was entitled to believe the evidence demonstrating McElvy's intent and agreement to conspire in the face of the defense's rebuttal. The trial court did not err in denying McElvy's motion for judgment of acquittal.

III. Prosecuting Attorney's Comment During Closing Argument

McElvy alleges that the prosecuting attorney improperly commented, indirectly, on his failure to testify by improperly commenting on codefendant Ward's failure to testify. If the comment did not prejudice Ward, it cannot have prejudiced McElvy. This court has held that Ward was not so prejudiced. United States v. Ward, No. 88-3195, mem. dec. at 3-4 (9th Cir. June 23, 1989). This decision is binding as the law of the case.

CONCLUSION

We affirm on all issues presented by appellant. The trial court's decision not to give a multiple conspiracy instruction was not error because the proof at trial did not vary from the single conspiracy charge. The judge did not err in denying appellant's motion for judgment of acquittal, for there was sufficient evidence for the jury to find appellant guilty. Finally, the prosecutor's comment about appellant's codefendant not testifying did not prejudice appellant. The judgment is AFFIRMED.