Unpublished Disposition, 914 F.2d 264 (9th Cir. 1990)

MEMORANDUM^* 

In these consolidated appeals, Jose Francisco Buelna-Zepeda and Pedro Aguilar appeal their convictions, following a jury trial, for conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B), and 18 U.S.C. § 2. Aguilar also appeals his conviction for the carrying and use of a firearm during a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c) and 2.

In Buelna-Zepeda's appeal, the appellant first challenges the sufficiency of the evidence to support his conviction for conspiracy to distribute cocaine and possession of cocaine with intent to distribute. Buelna-Zepeda concedes that a conspiracy existed among some of the defendants, but contends that the evidence was insufficient to prove his connection to that conspiracy. Buelna-Zepeda argues that the government failed to show anything more than his "mere presence" at events planned and performed by his co-defendants.

There is sufficient evidence to connect Buelna-Zepeda with the conspiracy, although admittedly that connection is slight. The government need only show a slight connection between the defendant and the conspiracy to convict a defendant of knowing participation. U.S. v. Cloughessy, 572 F.2d 190, 191 (9th Cir. 1977). "Proof of the defendant's connection to the conspiracy requires a showing that the defendant knew of the existence of the conspiracy and acted with the intent to further its goals." United States v. Esparza, 876 F.2d 1390, 1392 (9th Cir. 1989). In this case, there was either direct evidence or evidence from which the jury could reasonably infer that Buelna-Zepeda accompanied co-conspirator Juan Antonio Hernandez Martinez to Vancouver in order to pick up cocaine, that Buelna-Zepeda accompanied Martinez as he transported the cocaine from Vancouver, that Buelna-Zepeda knew of a conversation between other conspirators arranging to make the drug delivery, that Buelna-Zepeda was present at the time of the planned delivery of the drugs, and that Buelna-Zepeda was in possession of the telephone pager that was used in furtherance of the delivery. From his activities during the orchestrated events leading to the delivery, the jury could reasonably infer that he was a knowing participant in the conspiracy.

Buelna-Zepeda also asks that we reverse his conviction on the ground that the district court erred in excluding, as hearsay, evidence of calls made to the telephone pager in Buelna-Zepeda's possession. The evidence would have shown that the callers asked for defendant Aguilar rather than Buelna-Zepeda. The record reflects that the prejudicial effect of the evidence would heavily outweigh any probative value if it were used to support an inference that defendants other than Aguilar were uninvolved. We agree with the district court that the evidence had little probative value. There was no reversible error.

Buelna-Zepeda's final contention on appeal is that he was denied effective assistance of counsel because his lawyer did not obtain the services of a handwriting expert in connection with the Vancouver motel receipt. There is nothing in this record, however, to indicate that the testimony of a handwriting expert would have exculpated the appellant. There has therefore been no showing of any deficient performance by counsel that prejudiced appellant's defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). There is no basis for reversal.

Aguilar challenges the sufficiency of the evidence to support his conviction for possession of a firearm. Although there is no direct evidence that he possessed the revolver found on the floor of the silver/gray Honda containing the cocaine, there was sufficient circumstantial evidence from which the jury could infer possession. The gun was found near Aguilar's feet at the time of his arrest; the two prior occupants of the car testified they did not know a gun was in it, and Aguilar's fellow occupants testified that they did not possess the gun.

Aguilar also challenges the admission of testimony by Aguilar's former girlfriend that he had battered her and that she was afraid of him. Delaine Sue Trammell's testimony that she feared Aguilar and that she had been battered by him was relevant to show why she had refused to implicate him in her post-arrest statement to a DEA agent. See United States v. Gilley, 836 F.2d 1206, 1213-14 (9th Cir. 1988).

The judgments of conviction are AFFIRMED.