Unpublished Disposition, 896 F.2d 555 (9th Cir. 1990)

MEMORANDUM^** 

David Munoz argues that his conviction should be reversed. He urges two grounds:

1. That the indictment should have been dismissed because "the grand jury heard untrue testimony which formed the basis of its determination that probable cause existed for its charges--" and

2. that the evidence "was insufficient to support a conspiracy conviction where defendant (Munoz) was merely present at an apartment where controlled substances were sold during this time period covered by the indictment".

With respect to the first point, the law is against Munoz and as to the second, the record contains substantial evidence from which a jury could legitimately infer that Munoz was not "merely present" but that in addition to being present he was criminally involved in drug dealing activity.

To briefly elucidate: The Supreme Court's succinct statement of the general rule that "validity of an indictment is not affected by the character of the evidence considered" together with its observation that "an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence--," United States v. Calandra 414 U.S. 338, 344-45 (1974), provide the irrefutable adverse answer to Munoz's first contention.

Passing Munoz's failure, at any time during trial, to move for acquittal on the ground of insufficiency of evidence to sustain a conviction (Fed. R. Crim. P. 29(a)) (a waiver of an appellant's right to urge such point, United States v. Curtis, 568 F.2d 643, 647 (9th Cir. 1978)), we nevertheless have carefully examined the record, but can only conclude, as noted earlier, that Munoz's complicity is evident. Without going into minutiae, it appears that the cocaine sold the undercover agents was part of a larger amount kept in a kitchen cabinet in Munoz's apartment, that although the sale was made by one, Ozuna, Munoz's uncle, he, Munoz was there and that their conversations and activities during and immediately after the sale showed the two were and had been engaged in furthering an illicit drug business.

AFFIRMED.