Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^*

Manuel Guerrero Moreno and Angel Alberto Agostino appeal their convictions of 1) conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846, and 2) possession of heroin with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. We consolidate the two appeals and affirm the judgment of the district court.

No. 89-50272

Moreno argues that there was insufficient evidence to support the convictions of conspiracy to possess heroin with intent to distribute, possession of heroin with intent to distribute, and aiding and abetting. Specifically, he claims that the evidence failed to show that he 1) had the intent to agree to combine with others to possess and distribute heroin; 2) had the intent to possess and distribute heroin; and 3) had the intent to facilitate the sale of heroin and participated in the heroin transaction.

Sufficient evidence was presented to support the finding that Moreno intended to agree to conspire with Agostino, Medina, and the CI to possess and distribute heroin. Moreno met Agostino and Medina in Tijuana to participate in a drug deal. The three men drove to San Pedro, from which Medina would then drive to Los Angeles to pick up a package. Upon Medina's return, Moreno helped open the package which contained heroin. He told Medina that the package had to be taken to Oceanside for delivery. The three men met the CI at his hotel. Moreno permitted the use of his car to travel to Denny's to consummate the deal. He walked through Denny's and, upon finishing his walk, nodded at Agostino. A reasonable trier of fact could infer from his actions that he inspected the premises to ensure that it was safe to conduct the exchange and upon finding so, gave his consent to begin. The evidence supports the finding that Moreno knew of the conspiracy to sell heroin and committed several overt acts in furtherance of the conspiracy. It also supports the finding that he knowingly and intentionally possessed heroin with intent to distribute.

Sufficient evidence supports Moreno's conviction on the aiding and abetting charge. Nothing in the record or briefs indicates that the jury was improperly instructed on the required elements of aiding and abetting. The district court did not err in declining to give Moreno's requested instruction on mere presence. See United States v. Burgess, 791 F.2d 676, 680 (9th Cir. 1986); United States v. Barber, 495 F.2d 327, 329-330 (9th Cir. 1974); Loux v. United States, 389 F.2d 911, 921-22 (9th Cir.), cert. denied, 393 U.S. 867 (1968).

Moreno contends that the district court erred in denying his request to either dismiss the indictment or grant a new trial on the ground that the Government failed to produce the confidential informant (the CI) at trial. He argues that he had the right to confront and question the CI since the CI identified him as one of the conspirators. But Moreno has not shown how the CI's testimony would have been material and favorable to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); United States v. Guzman, 852 F.2d 1117, 1122-23 (9th Cir. 1988); United States v. Cervantes-Gaitan, 792 U.S. 770, 773 (9th Cir. 1986). The CI's testimony as to Moreno's identity would have been cumulative since Medina and DEA agent Skaggs already testified as to his identity and role in the heroin transaction.

Moreno also argues that he is entitled to a new trial based on evidence discovered after trial that the CI was arrested in Mexico for transporting marijuana. However, Moreno has not shown how the arrest of the CI, who did not testify, is relevant or material to the conviction. See United States v. Krasny, 607 F.2d 840, 843 (9th Cir. 1979), cert. denied, 445 U.S. 942 (1980). The district court did not abuse its discretion by denying the motion for a new trial.

Moreno's conviction is AFFIRMED.

No. 89-50323

Defense counsel for Agostino contends that his closing argument was prejudiced by the district court's modification of his proposed entrapment instruction. However, the modified entrapment instruction that was given was substantially the same as the one defense counsel requested. His closing argument was not prejudiced by the instruction given to the jury.

The judgment of the district court is AFFIRMED.