Unpublished Disposition, 914 F.2d 1497 (9th Cir. 1990)

Nos. 89-10327, 89-10328 and 89-10343.

United States Court of Appeals, Ninth Circuit.

Before WIGGINS and LEAVY, Circuit Judges, and STEPHENS^* , District Judge.

MEMORANDUM^** 

Hector Serrano, Roberto Alba, and Juan Artiles appeal their convictions following a jury trial for conspiring to operate a drug distribution ring and operating a drug distribution ring. We have jurisdiction under 28 U.S.C. § 1291 (1988) and affirm.

1. The District Court's Jury Instruction on Serrano's Potential Liability for his Co-Conspirator's Actions

Hector Serrano contends that while the evidence might be sufficient to support the existence of three minor conspiracies, the government produced insufficient evidence to support its assertion that he engaged in the single overall conspiracy with Alba and Artiles to operate a drug distribution network charged in the indictment. Based on this contention, Hector Serrano argues further that it was error for the district court to instruct the jury that if it found him guilty of the conspiracy charged in the indictment, it could find him guilty of Alba's and Artiles' acts of distribution.

We review the sufficiency of the evidence de novo. United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987) (implicitly applying a de novo standard). "A single conspiracy exists where there is one overall agreement to perform a variety of functions to achieve the objectives of the conspiracy, and may include subgroups or subagreements." United States v. Guzman, 852 F.2d 1117, 1120 (9th Cir. 1988).

We conclude that when the evidence is viewed in the light most favorable to the government, see Patterson, 819 F.2d at 1502, a rational jury could conclude that Hector Serrano, Alba, and Artiles had one overall agreement to operate a cocaine distribution network and that Alba's and Artiles' acts of distribution were in furtherance of that agreement. Therefore, the jury could properly convict Hector Serrano for conspiracy as well as for his co-defendants' acts of distribution and the district court properly instructed the jury to that effect.

Christopher Serrano testified that: (1) Hector Serrano gave him a piece of paper with Alba's and Artiles's names and their phone numbers; (2) Hector Serrano asked him to set up a drug distribution network with Alba and Artiles; (3) Artiles said that Hector Serrano told him to work with Christopher; (4) Artiles stated that Alba and Hector Serrano knew "the whole thing"; (5) at a meeting in which he, Artiles, and Pearson discussed possible drug sales, Artiles said that Hector Serrano had called him; (6) Hector Serrano indicated that Alba would be arriving in Las Vegas; (7) Hector Serrano chided Christopher Serrano for not getting the car and beeper that Alba earlier told Christopher Serrano he wanted; (8) when Alba went to see Hector Serrano in prison, Hector Serrano gave Alba the name and number of Kelly Watts, a drug runner and Hector Serrano's girlfriend; (9) after a mishandled drug sale between Pearson and Alba, Hector Serrano told Christopher Serrano to talk to Alba about the problem; (10) a piece of paper which contained Artiles' beeper number was in Hector Serrano's handwriting; and (11) Hector Serrano asked him to tell Alba that Kelly Watts would call at a particular address.

Detective Pearson testified that: (1) Artiles stated that Hector Serrano had given Pearson a good recommendation; (2) Alba told him that he and Hector Serrano were very good friends and had known each other since childhood.

In addition to introducing into evidence the foregoing testimony, the government introduced the following trial exhibits: (1) telephone records indicating that both Alba and Hector Serrano called Kelly Watts, the drug runner Hector Serrano recommended; (2) telephone records which revealed that Hector Serrano often called both Alba and Artiles collect; (3) a business card found in Alba's Miami apartment which had the name of Kelly Watts in Hector Serrano's handwriting; (4) a letter from Hector Serrano to Alba found in Alba's apartment which discussed using Kelly Watts as a drug runner; and (5) a letter from Alba to Hector Serrano found in Hector Serrano's prison possessions which asked for Christopher Serrano's phone number.

Based upon this evidence, a rational jury could find beyond a reasonable doubt that Hector Serrano, Alba, and Artiles engaged in a single overall conspiracy to operate a drug distribution ring. Therefore, the district court properly instructed the jury that Hector Serrano could be liable as a co-conspirator for Alba's and Artiles' acts of distribution.

In oral argument, Hector Serrano's counsel attempted to avoid this conclusion by representing to us that the district court did not specify what conspiracy the jury could use as a basis for holding Hector Serrano liable for Alba's and Artiles' acts of distribution. Therefore, counsel concluded, the jury could have held Hector Serrano liable for Alba's and Artiles' acts of distribution even though it found him guilty of only one of the minor conspiracies he alleges might have existed--of which Alba's and Artiles' acts might not have been in furtherance, rather than of the single overall conspiracy charged in the indictment. This is a challenge to the district court's formulation of its co-conspirator liability instruction, which we review for abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

We see no basis for counsel's representation to us of the district court's instruction. The instruction states that the jury could find Hector Serrano liable for Alba's and Artiles' acts of distribution only if: (1) it found Hector Serrano "guilty of conspiracy as charged in Count I of the Indictment"; and (2) it found that Alba's and Artiles distribution offenses were "committed pursuant to the conspiracy"; and (3) it found Hector Serrano "was a member of the conspiracy at the time" Alba and Artiles committed the distribution offenses. We believe that there is no reasonable way to interpret this instruction to have allowed the jury to find Hector Serrano vicariously liable for Alba's and Artiles' acts of distribution based upon his involvement in a minor conspiracy, of which Alba's and Artiles' acts might not have been in furtherance, rather than based upon Hector Serrano's involvement in the single overall conspiracy charged in the indictment. The district court, therefore, did not abuse its discretion in its formulation of the instruction.

2. Alba's Motion for Acquittal on the Basis of the Sufficiency of the Evidence¹ 

Alba contends that the district court improperly denied his motion for acquittal because insufficient evidence supports his convictions. He asserts that the evidence supports only the conclusion that the authorities mistook him for the real culprit, Roberto Albareda. Alba argues he could not have been the culprit because he spoke no English but the alleged culprit did. The government admits that the police initially misnamed Alba as Albareda but contends that sufficient evidence nevertheless exists to support Alba's convictions.

We review this issue de novo. See Patterson, 819 F.2d at 1502 (implicitly applying a de novo standard). We conclude that when the evidence is viewed in the light most favorable to the government, see id., a rational jury could have found beyond a reasonable doubt that Alba, not Albareda, committed the offenses with which the government charged Alba.

Christopher Serrano identified Alba in court and identified Alba's voice on the tape recording of phone conversations which the government introduced into evidence. Christopher Serrano also testified that: (1) he knew Albareda as well as Alba; (2) he met Alba at the Ponderosa Motel; (3) Alba was with Albareda at the motel; (4) he ate with Alba at the Golden Wok restaurant and discussed (a) Artiles' proposed sale of marijuana, (b) purchasing cocaine, and (c) Alba's desire to have Christopher Serrano acquire an apartment, a car and a beeper for him; (5) he introduced Alba to Pearson; (6) Alba spoke to Pearson in English; (7) a photograph taken by the police depicted him and Alba walking to Christopher Serrano's car at the motel; (8) he went with Alba to see Hector Serrano in prison; and (9) he, Hector Serrano, and Alba discussed Albareda's arrest.

Detective Pearson, like Christopher Serrano, identified Alba in court. Pearson also testified that: (1) he spoke to Alba at the Golden Wok; (2) Alba spoke English in his presence; (3) he spoke in person with Alba to arrange a drug sale in Los Angeles; and (4) he spoke over the phone with Alba about the mishandled Los Angeles drug sale.

The government introduced into evidence the following trial exhibits against Alba: (1) a photograph of Alba and Christopher Serrano together at a motel; (2) Alba's address book with the name and number of a person who rented a car that Artiles used in Los Angeles; and (3) telephone records which indicated that Alba talked often with Artiles.

On the basis of all of this evidence that Alba, not Albareda, was the person who took part in the conspiracy, a rational jury could have concluded beyond a reasonable doubt that Alba committed the crimes with which he was charged.

3. Alba's Motion to Dismiss for Failure to Produce Brady Material

Alba contends the district court abused its discretion, see United States v. Michaels, 796 F.2d 1112, 1115 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), when it failed to grant dismissal based on a police officer's destruction of his surveillance notes after he prepared his formal surveillance report. Alba asserts that these notes would have been exculpatory and should have been disclosed under the rule announced in Brady v. Maryland, 373 U.S. 83 (1963). We disagree.

To prove a Brady violation, Alba must show that the government failed to disclose material evidence. United States v. Tham, 884 F.2d 1262, 1266 (9th Cir. 1989). "Evidence is material only if 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

A defendant's assertion that a police officer's notes might contain evidence not contained in the officer's report based upon those notes, without more, is not sufficient to require disclosure. See Michaels, 796 F.2d at 1116.

Alba has failed even to explain how the police officer's surveillance notes could have been material, let alone to show that the notes actually were material. Alba seems to imply that the notes would have bolstered his mistaken identity claim, perhaps by impeaching the credibility of government witnesses who claimed that the police had not mistaken Alba for Albareda but had merely misidentified Alba as Albareda. However, the officer's report, based on his surveillance notes, identified the suspect as Albareda. Alba has not shown how the officer's notes would have provided any additional evidentiary value to his mistaken identity claim.

Nor does Alba explain how Christopher Serrano's alleged lack of credibility or the fact that Christopher Serrano aided the government in the investigations and prosecutions at issue here, extensively explored at trial, shows that the officer's notes would have been likely to affect the outcome of his trial.

Finally, because the evidence Alba sought was evidence the government lost, he had to show that the destruction resulted from the government's bad faith in order to obtain a dismissal without showing that the evidence was material under the Brady standard. See Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988). Alba does not seriously contend that he made such a showing in the district court.

Alba argues that the district court sentenced him improperly. He does not, however, contend that his sentence was improper under the specific provisions of the Sentencing Guidelines. Rather, Alba contends that the general purpose of the Guidelines was to reduce unwarranted sentencing disparities and the sentencing court violated this general purpose by imposing a 10 month longer sentence on him than on his allegedly similarly or more culpable co-defendant Artiles.

At some points Alba seems to be arguing that his sentence is invalid under the Guidelines themselves because it is longer than his co-defendant's sentence. At other points, Alba states that his sentence is "unfair" and seems to be arguing that his sentence violates due process because it is longer than his co-defendant's sentence. Both of these are questions of law which this court reviews de novo. See United States v. Brady, 895 F.2d 538, 539 (9th Cir. 1990). Either way, we reject Alba's argument.

Because the Guidelines do not require the sentencing court to consider co-defendants' sentences in setting a defendant's sentence, see United States v. Enriquez-Munoz, 906 F.2d 1356, 1359 (9th Cir. 1990), Alba's claim under the guidelines fails--even if we were to accept his very questionable premise that Artiles was more culpable than he. As the Enriquez-Munoz court stated,

The general purpose of the Guidelines must be considered in light of the specific set of rules the Commission adopted.... [T]here are ... numerous instances where, under the Guidelines, uniformity is unattainable or undesirable.

Id. at 1360.

Turning to Alba's constitutional claim, we have explicitly held that the Guidelines' delineation of what factors are to be taken into account in sentencing and what weight to give those factors does not violate due process of law. See Brady, 895 F.2d at 542-43.

5. The District Court's Denial of Artiles' Motion for a Mistrial on the Basis of the Prosecutor's Comments During Closing Argument² 

Artiles argues that the district court improperly denied his motion for a mistrial based upon the prosecutor's alleged improper comments in his closing argument. We reject this argument.

We review this issue de novo. See United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986) (implicitly applying a de novo standard). In determining whether the district court's denial of the motion for a mistrial was proper, we must initially determine whether the prosecutor's remarks were improper and, if they were, whether the remarks, "considered in the context of the entire trial, including the conduct of the defense counsel, affected the jury's ability to judge the evidence fairly." Id.

Artiles first argues that the prosecutor improperly stated that Artiles' acts subsequent to his initial meeting with informant Christopher Serrano and undercover detective Pearson, but prior to Artiles' commission of some of the five acts of distribution for which he was charged and convicted, could be used as a basis for assessing whether the government entrapped Artiles into committing the subsequent acts. However, this statement by the prosecutor was proper. One who is not initially disposed to sell drugs and who is initially entrapped into selling drugs on some occasions can--as a result, for example, of his finding drug dealing to be easy and profitable on those initial occasions--develop a disposition to sell drugs and, therefore, not have been entrapped when he sells drugs on later occasions. United States v. North, 746 F.2d 627, 630 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985). That is precisely what the prosecutor suggested happened with Artiles--as a fallback from the prosecutor's position that Artiles was predisposed to commit all the offenses with which he was charged.

Artiles next argues that the prosecutor improperly stated that Artiles' case was not so important to the government that it would engage in improper tactics to ensure a conviction. Artiles contends that the prosecutor's minimization of the importance of the case distorted the government's burden of proof. But the prosecutor never stated that because this case was not of extreme importance to the government, the jury should not feel it necessary to find guilt beyond a reasonable doubt. Indeed, the prosecutor clearly stated in conjunction with his statement that the case was not of extreme importance to the government that the case was "damned important" to the defense, thereby emphasizing that his only point was that government did not have a great incentive to engage in improper tactics. And the district court instructed the jury in detail on the applicability and meaning of the "beyond a reasonable doubt" standard.

CONCLUSION

We AFFIRM the judgments of the district court.