Unpublished Disposition, 900 F.2d 263 (9th Cir. 1989)

MEMORANDUM^** 

Demetrio A. Saravia-Gonzalez appeals his convictions for conspiracy to possess cocaine with intent to distribute, possession of cocaine with intent to distribute, and distribution of cocaine in violation of 21 U.S.C. §§ 846 and 841(a) (1). He argues that there was insufficient evidence that he knew about the cocaine transactions. We affirm, but remand to vacate imposition of the special assessment.

Gonzalez was convicted after a bench trial. There is sufficient evidence to support conviction if, reviewing 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." United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988). Conspiracy under section 846 requires proof of: 1) an agreement, 2) to engage in criminal activity, and 3) one or more overt acts in furtherance of the conspiracy. United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989). The possession and distribution counts required proof of knowing dominion and control over the drugs. United States v. Castillo, 866 F.2d 1071, 1087 (9th Cir. 1988).

We hold that a reasonable trier of fact could have found that Gonzalez was aware of the drugs and participated in the scheme. Cocaine was found in the vehicle he was driving and in an unlocked storage cabinet in his place of business. Gonzalez's activities were coordinated with the conduct of the convicted co-conspirators. Considering the extent of the illegal activities originating from defendant's place of business, a reasonable trier of fact could have found beyond a reasonable doubt that Gonzalez was aware of the activities and that he participated knowingly.

We affirm the convictions but sua sponte order vacation of the special assessment included in the sentence. See United States v. Munoz-Flores, 863 F.2d 654, 681 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (Oct. 2, 1989).

AFFIRMED IN PART and REMANDED.