Unpublished Disposition, 920 F.2d 937 (9th Cir. 1988)

No. 89-10433.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and BRUNETTI Circuit Judges, and BELLONI^* , Senior District Judge.

MEMORANDUM^** 

The United States appeals from the district court's order granting Luis Renteria-Alvarez' motion for judgment of acquittal notwithstanding the verdict. The government contends that the jury verdict convicting Renteria of conspiracy to possess with intent to distribute marijuana under 21 U.S.C. 846, and possession with intent to distribute marijuana under 21 U.S.C. 841, should not have been overturned by the trial court for lack of sufficiency of the evidence. We review the judgment of acquittal using the same standard as the trial court: viewing the evidence in the light most favorable to the government, we ask whether any rational trier of fact have found the essential elements of the crime beyond a reasonable doubt. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987). We affirm the decision of the district court.

FACTS

On the night of March 9, 1988, Customs agents conducted surveillance around a suspected marijuana loading site in a remote area outside of Nogales, Arizona. Agents first observed a horse and rider at the site and sometime thereafter two vehicles were spotted heading toward the load site. The lead vehicle was an open bed pickup truck and the other was a white van. Agents observed the vehicles make their way over rough roads until they neared the site. At that point the van flashed its headlights and continued to the load site; the pickup turned around and parked near, but not at the site.

Agents observed the van at the load site and heard the sound of horse hoofs and what may have been bundles being loaded into the van. The van remained at the site for forty minutes and then traveled away from the location until it rejoined the pickup. At this point a helicopter joined the surveillance and after a time observed the two vehicles turn from a dirt road onto an unimproved ranch road. The pilot saw one vehicle pull ahead of the other several times, stop, and then wait for the other to catch up. While the two vehicles were stopped, they sometimes turned off their headlights. The pilot also observed that while the vehicles' lights sometimes went out, either their tail lights or brake lights remained illuminated.

As the vehicles approached a main road from the ranch road, one vehicle pulled ahead. The lead vehicle then returned to the other, flashed its headlights twice, and together they returned to the main road. Customs agents stopped the van and then the pickup. This was the first occasion they observed any of the occupants of the vehicles.

Daniel Ortiz-Caballero was the pickup driver; appellee Renteria was a passenger in the pickup; a co-defendant, Jesus Albert Ramirez-Robles, was the van driver. In the cab of the pickup officers found a twelve-pack of Budweiser beer. The van contained eighty bundles of marijuana weighing 2,349 pounds.

DISCUSSION

To establish that appellee took part in a conspiracy to possess with intent to distribute narcotics, the government must prove the following beyond a reasonable doubt: (1) the existence of an agreement to accomplish an illegal objective; (2) one or more acts by appellee connecting him to the agreement and in furtherance of the illegal purpose; and (3) that appellee possessed the requisite intent necessary to commit the underlying substantive offense. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987) (citing United States v. Indelicato, 800 F.2d 1482, 1483 (9th Cir. 1986)).

Appellee concedes that there was sufficient evidence to survive the motion for judgment of acquittal on the issue of the existence of a conspiracy. The issue of appellee's intent is not raised in this appeal. The only issue here is whether there was sufficient evidence to prove beyond a reasonable doubt that appellee was a member of the conspiracy. We agree with the district court that there was not.

We have held that once the existence of a conspiracy is demonstrated, even a slight connection to that conspiracy "is sufficient to convict defendant of knowing participation in the conspiracy." Penagos, 823 F.2d at 348. It is also true that " [w]hile mere proximity to the scene of illicit activity is not sufficient to establish involvement in a conspiracy, a defendant's presence may support such an inference when viewed in context with other evidence." Id. In this case, the government failed to present any evidence connecting Renteria to the conspiracy other than his presence in the pickup as a passenger at the time the vehicle was stopped. For that reason, this case is like those in which we have held that "mere presence of the accused, in the absence of any other evidence linking the accused to the crime charged, precludes conviction of the accused of that crime." United States v. Esparaza, 876 F.2d 1390, 1393 (9th Cir. 1989) (Sneed, J., concurring); see also United States v. Penagos, 823 F.2d 346 (9th Cir. 1987) (no evidence to connect defendant with cocaine conspiracy); United States v. Cloughessy, 572 F.2d 190 (9th Cir. 1977) (same).

The government points to a number of facts that it asserts establish a sufficient connection between Renteria and the conspiracy for a rational jury to convict him. The government contends Renteria guarded the load site while others loaded marijuana into the van. In fact, the only evidence is that the truck in which Renteria was later found parked near the entrance to the site. There is no evidence that defendant acted as a guard or lookout at the load site. It is also asserted that "the occupants of the lead vehicle led the van driven by [Ramirez] through the ... ranch roads, acting as a scout." There is insufficient proof, however, that the pickup was the lead vehicle, or that it acted as a scout for the van loaded with drugs. In fact, once the vehicles reached the ranch roads, surveillance was conducted by a helicopter which could not possibly distinguish between the vehicles.

The government next asserts that the jury could have concluded that the "lead car was acting as a scout or lookout," citing cases in which this court has recognized lead/load car modus operandi. United States v. Larios-Montes, 500 F.2d 941, 943 (9th Cir. 1974), cert. denied, 422 U.S. 1057 (1975); United States v. Vital-Padilla, 500 F.2d 641, 643 (9th Cir. 1974); United States v. Figueroa-Espinoza, 454 F.2d 590, 591 (9th Cir. 1972). Appellant argues that this modus operandi was in effect: "The two vehicles signaled each other through the use of their headlights. On several occasions, one vehicle traveled ahead and waited for the other to catch up. As the vehicles approached Arivaca Road, one vehicle went ahead, apparently to determine if the road was clear." Moreover, there is no evidence that after the drugs were loaded into the van the pickup was the lead vehicle at all. Finally, even if events were as the government imagines them, because there is no evidence that defendant drove, owned or controlled the pickup, there remains no evidence of his connection to the conspiracy.

The government next asserts that the jury could infer that Renteria assisted the conspiracy by opening a series of animal gates that are located along the ranch road. The pilot was able to track the progress of the vehicles because although they turned off their headlights, their brake lights or tail lights remained illuminated. From this the government asks us to infer that both drivers must have remained in the vehicles and thus that Renteria, as passenger, opened the gates. Of course, there is no evidence that this is in fact what took place. The pilot did not see anyone exit the vehicles; he did not see Renteria open the gates; he did not see the pickup in the lead. Indeed, there is no proof the vehicles stopped at these gates.

The government next asserts that Renteria knew of the marijuana in the van because (a) it was clearly visible through the back of the van and (b) because a beer was found in the van and a package of similar brand beer was found in the pickup. The assertion is that this community of refreshment establishes that there was communication between the members of the vehicles which in turn establishes Renteria's knowledge. Of course, if the government is correct that the pickup was the lead vehicle, Renteria would never have had the opportunity to look through the back of the van and see the marijuana. Also, the presence of beer in the van is hardly sufficient to connect Renteria with the conspiracy: someone else could have made the asserted beer transfer or the beer could have been in the van earlier.

The government next attempts to connect appellee to the conspiracy by describing its scope and complexity: it involved over one million dollars of contraband; the use of a scout vehicle in a remote area under cover of darkness; the load site was reconnoitered by a man on horseback; a semi-automatic pistol was found in the van. The government asserts: "In such a carefully planned operation involving such a large amount of drugs, the conspirators would not bring along an unknowing bystander." United States v. Dazzo, 672 F.2d 284, 288-89 (2nd Cir.), cert. denied, 459 U.S. 836 (1982). The government's reliance on Dazzo is misplaced. In that case, defendant was convicted, among other offenses, of conspiracy to import and distribute marijuana. The court rejected defendant's claim that the evidence was insufficient to support a conviction. It relied on evidence that defendant owned, controlled, and had been instrumental in the purchase and repair of two vessels involved in a massive drug smuggling operation. There is no evidence that Renteria owned, controlled or operated either of the vehicles involved in this conspiracy. There must be some evidence beyond mere presence, no matter how complex the operation, to connect defendant to the conspiracy. Esparza, 876 F.2d at 1393.

Finally, the government asks this court to infer, from the very absence of evidence, that defendant was connected to the conspiracy. Appellant asserts that because defendant was not in the van with the drugs, it is reasonable to infer that he was attempting to insulate himself from criminal liability, citing United States v. Ledesma, 499 F.2d 36, 42 (9th Cir.), cert. denied, 419 U.S. 1024 (1974). Appellant's reliance on this case is misplaced. In Ledesma defendant was convicted of conspiracy to possess and distribute drugs. There was evidence that Ledesma picked up a trunk containing cocaine after making a series of arrangements to do so. This court rejected his assertion that the evidence was insufficient to support conviction. In fact, the only assertion of "disassociation" in the case refers to Ledesma's co-conspirator. The government here provides no proof that defendant actively disassociated himself in an attempt to avoid liability, or authority for the proposition that disassociation in and of itself is evidence of a connection to a conspiracy.

Appellant contends, moreover, that the absence of any reasonable explanation for defendant's presence in the pickup truck during the evening, other than a part in the conspiracy, is alone sufficient to establish his connection to the enterprise. It is not, however, defendant's burden to explain his presence, but the government's burden to establish, with evidence, that he was a conspirator. The government has not satisfied this burden. Indeed, there is no evidence that defendant was in the truck at any time during the evening except at the time the vehicle was stopped on Arivaca Road. The lack of an explanation is not enough to establish a connection between defendant and the conspiracy.

2. The Possession with Intent to Distribute Count

The second count was presented to the jury on an aiding and abetting theory. In order to prove this offense, the government must demonstrate that Renteria " 'associat [ed] himself with the venture, that he participate [d] in it as something he wish [ed] to bring about, and that he [sought] by his action to make it succeed.' " United States v. Smith, 832 F.2d 1167, 1170 (9th Cir. 1987) (citations omitted).

Because this count is based on an aiding and abetting theory which requires, like conspiracy, evidence of participation, the government has not produced sufficient evidence to sustain a conviction. Even if it is assumed that Renteria was in the pickup truck during the entire evening, there is no evidence of any of his activity. Mere presence in the truck is insufficient to establish association, participation, and action designed to aid in the success of the enterprise.

The government contends also that there was sufficient evidence to prove Renteria' guilt as a principal. Defendant could not be convicted of illegal possession unless he knew contraband was present and was capable of exercising control over it. United States v. Behanna, 814 F.2d 1318, 1319 (9th Cir. 1987). Appellant correctly points out that (a) possession may be constructive; (b) " [m]ere proximity to contraband, presence on property where it is found and association with a person or persons having control of it are all insufficient to establish constructive possession," United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985); and (c) that constructive possession can be demonstrated by participation in a "joint venture" to possess a controlled substance. Id. (citing United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989)).

The government has failed, however, to provide any evidence of control over the contraband, control or ownership over either of the vehicles, or participation in a joint venture, which is not easily distinguishable from a conspiracy.

CONCLUSION

The district court correctly granted appellee's motion for judgment of acquittal notwithstanding the guilty verdict both with regard to the conspiracy and the possession counts.

AFFIRMED.