Unpublished Disposition, 912 F.2d 470 (9th Cir. 1989)

MEMORANDUM^**

After a jury trial, defendant, Luis Anthonio Mejia, was convicted of conspiracy to distribute and aiding and abetting the distribution of cocaine. He contends, first, that the district court erred when it failed to grant his motion for acquittal. Second, he argues that there was a variance between the conspiracy charged in the indictment and the one proven at trial. Third, he argues that he received ineffective assistance of counsel. We affirm.

BACKGROUND FACTS

From June of 1988 to February 1989, federal and state agents investigated the narcotics activities of Branly Cabral-Gomez and Rafael Castillo. From June to July 19, Cabral and Castillo responded to telephone calls to a paging number made by a confidential informant. They set up cocaine transactions with an undercover agent. Castillo personally dealt with the undercover agent until July 19. Some time after that date, Castillo left Alaska, but he continued to deliver cocaine to Cabral.

In December 1988, Mejia, who shared an apartment with Cabral, returned calls to the telephone paging number. At one point, Mejia asserted that he was in charge of the operation while Cabral was out of the state.

In January 1989, Cabral conducted two cocaine transactions with an undercover agent. On February 15, 1989, Cabral arranged a transaction with informant Thomas Crader. Cabral, Mejia, and a Patrick McEntee drove in a truck to Crader's residence. Cabral delivered the cocaine to the residence, while Mejia and McEntee remained in the truck. The following day, Mejia and McEntee returned to Crader's residence. Mejia entered the residence and received $12,000 as partial payment for the cocaine delivered the day before.

Cabral, Castillo, and Mejia were indicted for conspiracy to distribute and for distribution of cocaine. Cabral and Mejia were tried together before a jury. At the close of the prosecution's case, Mejia moved to dismiss the conspiracy count and for acquittal. The court denied the motion to dismiss. Mejia was convicted of conspiracy to distribute and aiding and abetting distribution of cocaine. The court filed its judgment on July 27, 1989, and Mejia filed his notice of appeal on the same date.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

Although Mejia made a motion for acquittal at the close of the prosecution's case, he did not renew the motion at the close of all of the evidence. This court therefore reviews for plain error. Fed. R. Crim. P. 52(b). United States v. Rone, 598 F.2d 564, 572 (9th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 780 (1980).

DISCUSSION

First, Mejia contends that the court should have acquitted him of the charges against him. On the conspiracy count, the government proved a conspiracy between Cabral and Castillo to distribute cocaine. If the government proved that Mejia had "slight connection" with the conspiracy, then Mejia was also criminally liable for the conspiracy. "Slight connection" is evidence sufficient to show that the alleged co-conspirator knew of the conspiracy and acted in furtherance of it. United States v. Cloughessy, 572 F.2d 190, 191 (9th Cir. 1977) (per curiam).

The evidence showed more than a slight connection. Although Mejia joined the conspiracy after Cabral and Castillo initiated it, his acts and statements showed that he knew of the conspiracy and acted to further it. United States v. Bibbero, 749 F.2d 581 (9th Cir. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2330, 85 L. Ed. 2d 847 (1985). The court did not commit plain error.

The court also did not commit plain error on the aiding and abetting count. The evidence showed that Mejia had the specific intent to facilitate the distribution offense, that he had the requisite intent to distribute cocaine, and that he assisted Cabral's commission of the distribution offense. United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988).

Second, Mejia contends that there was a variance between the conspiracy alleged and the one proven at trial. There is no variance if the evidence was sufficient to allow the issue of whether there was a single conspiracy to go to the jury. United States v. Morse, 785 F.2d 771, 774 (9th Cir.), cert. denied, 476 U.S. 1186, 106 S. Ct. 2925, 91 L. Ed. 2d 553 and 479 U.S. 861, 107 S. Ct. 209, 93 L. Ed. 2d 139 (1986). The evidence demonstrated an ongoing conspiracy between Cabral and Castillo, which Mejia later joined. That conspiracy was the same as the one alleged in the indictment. The evidence was sufficient to allow the issue of whether a single conspiracy existed to go to the jury.

Third, Mejia contends that he received ineffective assistance of counsel. Claims of ineffective assistance should normally be resolved in habeas corpus proceedings. United States v. Sanclemente-Bejarano, 861 F.2d 206, 211 (9th Cir. 1988) (per curiam). However, in this case the record is clear, so we have considered the issue. While counsel's opening and closing arguments and decision to use an expert may not seem perfect in retrospect, defendants are only entitled to reasonably effective--not perfect--counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Our review satisfies us that defendant did receive the representation to which he was entitled. Thus, this claim must fail.

AFFIRMED.