Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^** 

Defendant Angel Raul Diaz appeals his conviction of conspiracy to distribute cocaine and three counts of distribution of cocaine in violation of 21 U.S.C. §§ 846 and 841(a) (1). He contends that the jury had insufficient evidence to convict him. Viewing the evidence in the light most favorable to the government, see United States v. Basey, 613 F.2d 198, 201 (9th Cir. 1979), cert. denied, 446 U.S. 919 (1980), we conclude, to the contrary, that the jury had sufficient evidence to convict Diaz.

Diaz concedes that government agents saw him hand co-defendant James Egidio Jr. a white, plastic grocery bag. However, he argues that aside from Egidio's testimony against him during a plea bargain, the government had no direct proof that the bag he handed Igidio was the same bag containing cocaine that government agents later seized. In addition to challenging the credibility of Egidio and another witness, Thomas Smith, who testified against him, Diaz contends that he was not found in possession of any controlled substance or paraphernalia, weapons, or cash, which might have indicated criminal activity. In addition, he argues that his fingerprints were not found on the plastic bag confiscated by government agents.

Diaz's claims are without merit. The credibility of a witness is a matter for the jury's determination. See United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 481 U.S. 1030 (1987). Because the witnesses' testimony was not incredible on its face, the jury could and did find it believable. See id.

In addition, five minutes after Diaz delivered the plastic bag to Egidio, the government presented evidence that Smith had telephoned a confidential government informant and told him that Smith's source had just received the cocaine and that Smith was going to pick it up. The bag Smith was caught carrying was identical in appearance to the one seen by government agents in Diaz' hands. The jury could thus reasonably infer that Diaz was Egidio's source. Because the government presented both direct and circumstantial evidence of Diaz' guilt, we conclude that the jury had sufficient evidence to convict Diaz.

AFFIRMED.