Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

MEMORANDUM^** 

Chacon appeals his conviction for conspiracy to import marijuana and related crimes. He claims that the district court improperly denied his motions for judgment of acquittal and new trial. We affirm.

Facts

Guadarrama transported some stereo equipment to Mexico for Chacon. In Mexico, Chacon's brothers took Guadarrama's truck for a few days, unloaded the equipment and returned the truck empty. Before he left Mexico, Guadarrama learned from Chacon's mother-in-law that the truck contained drugs. When the drugs were discovered at the border, Guadarrama stated that the whole scheme was Chacon's and that Chacon had promised him $5000 upon completion of the trip.

In a taped telephone conversation, Guadarrama told Chacon's mother-in-law that the truck had broken down. Chacon called him back, repeatedly expressing concern as to whether there was a problem. Chacon sent another man to San Diego to pick Guadarrama up at the appointed service station. The other man had a brief conversation with Guadarrama and then drove away. Eight days later, government agents arrested Chacon at his home. When initially questioned, he gave a false name.

Chacon was convicted of conspiracy to import marijuana, importation of marijuana, possession of marijuana with intent to distribute and unlawful use of a communication facility. After Chacon was sentenced, his lawyer received a letter from Guadarrama. In the letter, Guadarrama stated that Chacon had promised him $500, not $5000, on his return from Mexico. He stated that his attorney had told him to give the $5000 figure. Chacon moved for a new trial based on the evidence presented by this letter, and the possibility that Guadarrama had perjured himself at trial.

Discussion

A. A jury could reasonably have believed that Chacon had committed the crimes for which he was charged. Chacon's mother-in-law knew that there were drugs in the truck. Her concern that Chacon be told about the problems with the truck implicates him as well. That Chacon sent someone to pick up Guadarrama, but that person left him there, shows that Chacon's concern was for something other than Guadarrama. The jury could have believed that Chacon agreed to pay Guadarrama $5000 and could have inferred that the payment was for the transport of drugs. Finally, that Chacon lied when questioned about his identity could have further substantiated Chacon's guilt in the jury's mind. The district court did not err in denying the motion for acquittal.

B. The motion for new trial was also properly denied. The district judge read the letter and decided that it was a fabrication. This factual finding is supported by the record, as Guadarrama had told the DEA agents long before the trial that Chacon had promised him $5000.

In United States v. Krasny, 607 F.2d 840 (9th Cir. 1979), we remanded where the district court did not "make a specific factual finding as to whether [the recanting witness] committed perjury." Id. at 846. As a condition to fully considering the motion for new trial, the district court had to determine whether the witness "appeared to have committed perjury." Id. By finding Guadarrama's letter to be a fabrication, the court below clearly found that the letter provided no evidence of perjury; under Krasny, that is the end of the inquiry.

AFFIRMED.