Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Robert Gabay ("Gabay") appeals his conviction, following a jury trial, on one count of conspiracy to possess and distribute cocaine and one count of possession with intent to distribute cocaine. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

FACTS

On November 8, 1988, undercover FBI Special Agent Danford Wright ("Wright") called Edward Poff ("Poff") to arrange a cocaine purchase. Wright informed Poff that he was interested in obtaining approximately three kilograms of cocaine. Poff suggested that he and Wright meet in Encino to conduct negotiations.

Later that same day, Wright met Poff in a park. During the negotiations, Wright insisted that he receive the cocaine before any money changed hands. Poff then left to consult with his source and returned thirty minutes later. Poff informed Wright that his source did not want to transport the cocaine on his motorcycle, but wanted to complete the transaction at a restaurant around the corner from his house.¹  Poff gave Wright directions to a Baker's Square restaurant in Canoga Park.

Wright and another undercover agent followed Poff to the restaurant. Wright again refused to hand over any money before receiving the cocaine. Poff then left the parking lot and went to Apartment No. 43 in a nearby condominium complex. Unit 43 was Gabay's apartment. Poff returned in about fifteen minutes and told Wright that his source would not deliver three kilograms without receiving any money first. Wright suggested a one kilogram exchange, followed by a two kilogram exchange. Poff agreed and went back to Gabay's apartment. He returned approximately thirty minutes later and told Wright that the cocaine still had not arrived.

After further discussions between Poff and Wright, Poff went to Gabay's apartment one more time. He returned thirty minutes later and suggested that Wright check into a motel and call him at 7:30 that evening. Wright and Poff agreed to discuss the deal the following morning around 10:30 or 11:00 a.m. On the afternoon of November 9, Wright returned to the Baker's Square restaurant parking lot. Poff again made several trips between the parking lot and Gabay's apartment, but failed to produce any cocaine. In the early evening, Poff returned to the restaurant parking lot accompanied by Gabay. Poff had told Wright that Gabay, who he referred to as "Roberto," was his source and Gabay wanted to apologize to Wright for the delay. Gabay did apologize to Wright for the delay in delivering the cocaine and stated that it would be ready the next morning. Before Wright left the parking lot, Poff gave him a pager number so Wright could contact Gabay directly. Poff also told Wright that he could deal directly with Gabay, because Gabay always gave Poff his cut.

Around noon on November 14, Wright called the number he had received from Poff and requested a return call to the pay phone where he was waiting. Shortly thereafter he received a call from Gabay. Wright asked Gabay if he had the cocaine and Gabay replied that he had it in his hand. Telephone records show that Gabay made the call from his apartment.

Around 3:30 p.m. the same day, Wright and another agent entered the Baker's Square restaurant parking lot. Poff was waiting in the parking lot. After initial discussions, Poff left the parking lot and entered Gabay's apartment. He left the apartment with a pink plastic bag in his hand and walked back to the parking lot. After confirming that the bag contained cocaine, Wright gave a prearranged signal and the FBI arrest team apprehended Poff after a brief pursuit.

At the same time, other FBI agents arrested Gabay at his apartment. After receiving his Miranda warnings, Gabay consented to a search of his apartment. The agents found three firearms, two of which were loaded, marijuana paraphernalia, various papers, and a pager bearing the number Poff had given Wright. One of the firearms was a loaded .357 magnum pistol, hidden behind a couch cushion and pointed at the apartment door. The other loaded firearm was a shotgun hidden underneath Gabay's bed. The unloaded gun was a hunting rifle found in the closet.

On November 29, a federal grand jury returned an indictment charging Poff and Gabay each with one count of conspiracy to possess and distribute three kilograms of cocaine, in violation of 21 U.S.C. § 846, and with one count of possession of that cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). Poff pleaded guilty to the conspiracy charge on February 6, 1989.

On March 3, after a two-day trial, a jury convicted Gabay on both counts. On March 15, the district court sentenced Gabay to ninety-seven months on each count, to run concurrently, and five years of supervised release to commence on his completion of the custodial sentence.

DISCUSSION

" [Gabay] claims that evidence admitted at his trial was insufficient to sustain his conspiracy conviction. In evaluating this claim, we view the record as a whole in the light most favorable to the prosecution." Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990). We determine whether "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).

The essential elements of a conspiracy are "an agreement to accomplish an illegal objective, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense." The government need not show either a direct contact or explicit agreement among the alleged conspirators. "A formal agreement is not necessary; rather the agreement may be inferred from the defendants' acts pursuant to the scheme, or other circumstantial evidence." Moreover, although mere proximity to the scene of illicit activity is not sufficient to establish involvement in a conspiracy, a defendant's presence may support such an inference when viewed in context with other evidence.

United States v. Thomas, 887 F.2d 1341, 1347-48 (9th Cir. 1989) (citations omitted).

The testimony by federal agents coupled with the tape recorded conversations between Wright, Poff, and Gabay provide ample evidence to support the jury's verdict. First, Poff's statements during the transaction support an inference that Gabay was his drug source. Poff referred to his source as "Roberto," described his source as owning a motorcycle, and said that his source lived in an apartment right around the corner from the Baker's Square restaurant. All these facts accurately describe Gabay. Moreover, Poff later testified that by "Roberto" he meant Gabay.

Second, Gabay's conduct leads to the inference that he was part of a conspiracy to distribute cocaine. When Poff was unable to supply the cocaine for the sale, Gabay personally apologized to Wright for the delay. Additionally, when Wright called the number Poff had given him Gabay personally returned the call and informed Wright that he was holding the cocaine in his hand.

Finally, Gabay's apartment was an integral part of the transaction. Surveillance agents testified that during the various meetings between Wright and Poff, Poff repeatedly went to and from Gabay's apartment and nowhere else. More importantly, these agents testified that Poff brought the cocaine from Gabay's apartment. This evidence is not only sufficient for a reasonable jury to find that Gabay participated in a conspiracy to possess and distribute cocaine in violation of 21 U.S.C. § 846, it is overwhelming. We affirm Gabay's conviction on this count.

Gabay concedes that if we uphold the jury's verdict on the conspiracy charge, then we must uphold his conviction on the substantive offense based on Poff's conduct. See Pinkerton v. United States, 328 U.S. 640, 645-48 (1946) (holding that persons may be held liable for the substantive offenses committed by their coconspirators in furtherance of the conspiracy). We agree and affirm Gabay's conviction of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a) (1).

Gabay contends the district court erred by admitting evidence concerning the weapons found in his apartment. The district court found that the weapons were relevant to Gabay's intent to engage in the narcotics trade, and that their probative value outweighed any prejudicial effect. We review these decisions for an abuse of discretion. See United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989).

We hold that the district court did not abuse its discretion by admitting evidence concerning the three guns. "Because [Gabay] was indicted for conspiracy to possess and distribute narcotics, the firearms can be relevant to show his involvement in the narcotics trade." United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir. 1987). Additionally, any prejudicial effect stemming from the admission of the evidence was outweighed by its probative value. The loaded and easily accessible handgun and shotgun were highly probative of Gabay's participation in drug trafficking. While the unloaded and less accessible hunting rifle was less probative, its prejudicial effect, if any, was minimal.

C. Sentence Enhancement for Possession of Weapons

Gabay argues the district court erred by adding two points to his base offense level for possessions of weapons. Gabay maintains he should have been sentenced under an offense level of 28, with a guideline range of 78-97 months. The district court sentenced him under an offense level of 30, with a guideline range of 97-121 months.

The district court explicitly stated that regardless of the enhancement, it would impose a sentence of 97 months. "In a situation where the trial judge would have pronounced the same sentence whether a dispute as to the appropriate guideline range was resolved in favor of the defendant or the government, a determination of which precise guideline range is applicable is unnecessary because the defendant cannot demonstrate prejudice." United States v. Turner, 881 F.2d 684, 688 (9th Cir.), cert. denied, 110 S. Ct. 199 (1989).

AFFIRMED.