Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1987)

No. 87-5336.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and NELSON, Circuit Judges, and MARILYN H. PATEL, District Judge.^* 

MEMORANDUM^** 

Yun Tung Chu appeals the denials of his motion for judgment of acquittal and his motion to suppress; and he appeals his convictions by a jury on one count of conspiracy to possess with intent to distribute heroin and to distribute heroin, in violation of 21 U.S.C. § 846, and one count of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). Chu contends that the evidence viewed in the light most favorable to the government was insufficient to support his convictions for conspiracy and possession with intent to distribute. We agree and reverse. Therefore, we need not address Chu's second contention that the district court erred in denying the motion to suppress.

* Motion for Judgment of Acquittal

BACKGROUND

In reviewing the denial of Chu's motion for judgment of acquittal, we are required to view the evidence in the light most favorable to the government and determine whether there was sufficient evidence from which a rational trier of fact could find beyond a reasonable doubt that Chu was guilty of each count charged. See United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir. 1987), cert. denied, 108 S. Ct. 1056 (1988). In addressing this question, the evidence viewed most favorably to the government shows that:

Agents of the United States Customs Service ("Customs") and the Drug Enforcement Agency ("D.E.A.") participated in a June 10, 1987 surveillance of the Port of Long Beach, California ("the Port"), where, based upon an anonymous informant's tip, they expected a transfer of approximately thirty pounds of heroin from crew member Kwok Yeung Wong ("Wong") of the container ship Burling Island ("Burling Island") to two Chinese males in a vehicle on shore. That morning, the Customs and D.E.A. agents observed a blue Nova automobile ("Nova") drive toward the dock and park near Pier J, where the Burling was docked. The agents observed the Nova's occupants, Yau and Chu, near the pier and then saw Yau approach the Port's freight station where he spoke with Wong. Yau and Chu then returned to the car, Chu getting in the passenger's seat and Yau in the driver's seat. The Nova left the Area. Later that day, agents observed the Nova return to the Port, and saw Wong walk off the Burling Island toward the Nova carrying a heavy blue bag in his hand, and then return to the ship with a brown package.

Customs and D.E.A. agents stopped the Nova after it drove away from the Port for the second time, arrested Yau and Chu, and searched the Nova. Inside they located the blue bag, which they unzipped and found to contain twenty-eight packages, later determined to conceal approximately ten kilograms of heroin worth up to two and a quarter million dollars. They also found documents indicating that Yau had registered a hotel room for the previous night for two people, and that Yau had rented the Nova for that day. Finally, they seized a brown jacket which fit Yau. Inside the jacket were $3400 in cash and a scrap of paper with a morning time frame and an afternoon time frame written on it.

Another customs agent boarded the Burling Island and arrested Wong. The agent searched Wong's cabin and found a brown paper bag with "34,640" written on it, as well as a suit jacket belonging to Wong with $34,640 in cash inside.

At Chu's trial, Wong testified that he had been instructed to bring a shipment of heroin on the Burling Island, and upon arrival to give it to a man named Qun. He explained that on their first meeting at the Port, Yau informed him that he was a friend of Qun. Wong further testified that when Yau returned later in the day, Wong walked over to the Nova, opened the rear door, got in the rear seat and placed a blue bag on the floor. Wong explained that Yau gestered to the glove compartment and asked Chu to give Wong a package. Chu took the brown package from the glove compartment and handed it to Wong. Wong testified that he did not know who Chu was, nor did Chu speak to him on that occasion. Wong also explained that the package was wrapped in two layers of waxed paper, and that only after he returned to the ship did he determine that it contained money. The government concedes that there was nothing written on the brown package that would indicate that Chu was aware of the contents of the brown package or the blue bag. There is no evidence Chu had any conversation with Wong.

DISCUSSION

The circumstantial evidence presented by the government was sufficient to prove the existence of a conspiracy in which Wong and Yau acted together in furtherance of the common goal of possessing with intent to distribute and distributing heroin. See United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). Proof of Chu's connection to the conspiracy "requires a showing that he knew of the existence of the conspiracy and acted with the intent to further its goals." See United States v. Esparza, 876 F.2d 1390, 1392 (9th Cir. 1989); see also United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir. 1977) (evidence must be produced that defendant had knowledge of the conspiracy and acted in furtherance of it); United States v. Dunn, 564 F.2d 348, 356 (9th Cir. 1977) (those knowingly participating in the conspiracy are guilty of the crime). Although Chu's connection to the conspiracy need only be slight, see United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987), such a connection must be proven beyond a reasonable doubt. See Esparza, 876 F.2d at 1391.¹ 

In the instant case, the evidence showed that Chu was a front-seat passenger in the Nova. But the government presented no evidence that Chu knew of the conspiracy, or that he was aware that the blue bag contained heroin or the brown package contained money. Despite the evidence that Chu handed the brown package to Wong under Yau's direction, the government presented no evidence that Chu knowingly participated in the conspiracy to possess or distribute heroin.² 

Chu's presence with members of the conspiracy at the scene of the heroin transfer is insufficient to connect him to the conspiracy because there is no evidence that Chu had knowledge of, or took any action with an intent to further the conspiracy. See United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980) (there can be no conviction for guilt by association); see also Esparza, 876 F.2d at 1392-93 and n. 2 (conspiracy conviction reversed although defendant was front-seat passenger in vehicle driven by conspirator and despite evidence of prior conviction for similar crime); Cloughessy, 572 F.2d at 190-91 (conspiracy conviction reversed, although defendant was an acquaintance of conspirators and present in car with conspirators during heroin deal). Chu's compliance with Yau's instruction that he pass a brown package to Wong similarly fails to link him to the conspiracy, since his action did not demonstrate that he was aware of the conspiracy and that he complied in order to further its goals. See Melchor-Lopez, 627 F.2d at 891 (acquiescence in the purpose of a conspiracy, without an intention to further the conspiracy, is insufficient to support a conspiracy conviction);³  see also Penagos, 823 F.2d at 348-50 (conspiracy conviction reversed despite evidence that defendant was at crime scene looking up and down the street, and that he rode in car with coconspirators); cf. United States v. Ospina, 739 F.2d 448, 450-51 (9th Cir. 1984) (Defendant convicted of conspiracy was present in car with conspirators, had in his possession paper bag containing aluminum foil and towels, and had business card showing his contacts with other co-conspirators.), cert. denied, 471 U.S. 1126 (1985); United States v. Allen, 675 F.2d 1373, 1384 (9th Cir. 1980) (defendants convicted of participation in marijuana conspiracy had been paid to move heavy containers), cert. denied, 454 U.S. 833 (1981).⁴ 

Chu's presence in the Nova while a zippered blue bag containing wrapped bundles of heroin was exchanged for a brown package containing cash and his compliance with Yau's request to hand the package to Wong is insufficient evidence from which a rational jury could find beyond a reasonable doubt that he knew of the conspiracy and acted with the intent to further its goals. See Aceves-Rosales, 832 F.2d at 1157. Therefore, we reverse Chu's conviction for conspiracy. See Esparza, 876 F.2d at 1392; Cloughessy, 572 F.2d at 191; Dunn, 564 F.2d at 356.

The government presented evidence that Chu was sitting in the front seat of a car in which D.E.A. and Customs agents found a blue bag in which over thirty pounds of heroin were concealed, but presented no evidence that Chu exercised control over the bag, that he knew that it contained heroin, or that he intended to participate in its distribution. The government has not provided sufficient evidence from which a rational jury could find beyond a reasonable doubt that Chu was guilty of possessing the heroin with intent to distribute it. See Aceves-Rosales, 832 F.2d at 1157. Therefore, the conviction on the possession count must be reversed as well. See Penagos, 823 F.2d at 350 (no conviction of illegal possession unless defendant knew contraband present and was capable of exercising dominion and control over it); United States v. Astorga-Torres, 682 F.2d 1331, 1337 (9th Cir.) (mere proximity to the drug, presence, or association with the person who controls the drug are insufficient to support a finding of possession), cert. denied, 459 U.S. 1040 (1982).

II

Motion to Suppress

We need not address Chu's second contention that the district court erred in denying his motion to suppress, having found that there was insufficient evidence to support the convictions. See United States v. Washington Water Power Co., 793 F.2d 1079, 1083 n. 5 (9th Cir. 1986) (court found it unnecessary to reach additional challenges to conviction once it was determined that there was insufficient evidence to support the conviction).

REVERSED.