Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

MEMORANDUM^** 

Miguel Guzman-Silva appeals from his conviction on two counts of conspiracy to distribute, and aiding and abetting possession with intent to distribute cocaine, arguing that the evidence was insufficient to support the jury's verdict. This court reviews the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crimes charged beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319 (1979), and we affirm.

The evidence presented at trial was that Guzman and Flora Montemayor left their respective houses in Eastern Washington on the same evening and separately drove for more than 3 1/2 hours, arriving in Seattle around 11:00 p.m. In recorded conversations with a government informant, Montemayor repeatedly identified her supplier as the "man" who was waiting in a nearby Safeway parking lot. Police were alerted and spotted Guzman parked in a nearby Safeway parking lot. When Guzman saw the police cruiser he began acting "suspiciously" (e.g., ducking below his dashboard, driving the car over and parking it between two already parked vehicles in a nearly empty five-acre lot, raising the car's hood but not doing any work on the engine, etc.). When the drug transaction fell through, Montemayor drove to the Safeway parking lot and, parking close to Guzman's auto, walked over to him, whereupon they were both arrested. A kilo of cocaine was found in Montemayor's car; no drugs were found on Guzman, in his auto, or in his house. His fingerprints were not found on the drug package, and no other evidence was proffered indicating that Guzman had had physical possession of the narcotics at any time.

With respect to the conspiracy claim, the government only had to prove the existence of an agreement to engage in criminal activity in which one or more overt acts in furtherance of that agreement had been committed. See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989). "If the government proves the existence of a conspiracy, the defendant [ ] need only have a slight connection to it." Id. at 779. Presence may support an inference of culpability "when viewed in context with other evidence." Id. (quoting United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987)).

The evidence was sufficient to sustain Guzman's conviction on the conspiracy to distribute count: a conspiracy was proven to exist, and the circumstantial evidence presented with respect to Guzman, viewed in a light most favorable to the prosecution, shows that he was connected to that conspiracy.

As for the second count, we hold that this case is distinguishable from Penagos, supra, because the evidence linking the appellant to the drugs is stronger here than in Penagos. There being more than sufficient evidence to support Guzman's conviction on the conspiracy count, we conclude that the evidence was also adequate to sustain his conviction on the aiding and abetting possession count. See United States v. Disla, 805 F.2d 1340, 1352 (9th Cir. 1986).

AFFIRMED.