Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1988)

No. 88-5470.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING, PREGERSON, Circuit Judges and GEORGE,^*  District Judge.

MEMORANDUM^** 

This action is before this court on appeal from the United States District Court for the Central District of California. On June 10, 1988, Francisco Garcia-Flores and his three co-defendants were convicted of conspiracy to distribute heroin and possession of heroin with the intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) & 846. This court has jurisdiction pursuant to 28 U.S.C. § 1291. On appeal, Garcia-Flores has presented the following issues:

1. Whether the government presented sufficient evidence to establish that Garcia-Flores was a member of the conspiracy.

2. Whether the government presented sufficient evidence to sustain Garcia-Flores' conviction for possession of heroin with the intent to distribute.

3. Whether the trial court properly instructed the jury that they could convict Garcia-Flores of possession with the intent to distribute as long as they found that he was a member of the conspiracy and acted with the intent to further the conspiracy's goal.

4. Whether the trial court properly denied Garcia-Flores' post-conviction challenge to the indictment on the ground that he was a juvenile when he committed the crime.

We must uphold Garcia-Flores' conviction if, "viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the elements of the crime." United States v. Guzman, 849 F.2d 447 (9th Cir. 1988).

CONSPIRACY COUNT

Although Garcia-Flores does not dispute the existence of the conspiracy, he contends that the government failed to establish his membership in it. A jury may find that Garcia-Flores was a member of the conspiracy in several different ways. First, Garcia-Flores' knowledge of and participation in the conspiracy "may be inferred from circumstantial evidence and from evidence of [his] actions." United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038 (1980). The government need not prove participation in a criminal conspiracy by direct evidence. United States v. Westover, 511 F.2d 1154, 1156 (9th Cir.), cert. denied, 422 U.S. 1009 (1975). Second, when viewed in the context of the surrounding circumstances, acts that might otherwise appear innocent "may justify an inference of complicity." Batimana, 623 F.2d at 1368. Finally, when the evidence establishes that a conspiracy existed, only slight evidence is necessary to convict Garcia-Flores of knowing participation in it. Guzman, 849 F.2d at 448.

Based upon these principles, we find that substantial evidence supports Garcia-Flores' connection to the conspiracy. Garcia-Flores met with his co-defendants at the post office. He participated in the discussion that took place around the Tide box containing heroin. During this meeting, Campos apparently removed half a kilo of heroin from the box. Garcia-Flores and Canchola transported the heroin to the Red Lion Inn. Garcia-Flores looked around the parking lot as they slowly drove through it, and he sat in the car during the entire sales transaction. After the arrests began, Garcia-Flores and Canchola attempted to escape by driving away from the scene. At trial, police officers testified that based upon their experience in drug enforcement and their observations, Garcia-Flores was performing several functions including maintaining the "load car" in which the heroin was stored, guarding the heroin and conducting counter-surveillance. This activity sufficiently connects Garcia-Flores to the conspiracy. Additionally, Garcia-Flores' participation in the meeting around the Tide box containing the heroin provides circumstantial evidence of participation and a meeting of the minds. The evidence in this case clearly establishes more than mere association or presence.

POSSESSION COUNT

Garcia-Flores argues that the evidence fails to show that he had either actual or constructive possession of the heroin. The government may establish possession by showing actual custody or constructive possession. United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1988). The government may show constructive possession by establishing that Garcia-Flores had sufficient dominion and control to give him power of disposal. Id. The government may show constructive possession by circumstantial evidence. Id. However, mere proximity to the heroin or association with people who do have dominion and control are insufficient to establish constructive possession. United States v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985).

In this case, a jury could reasonable conclude that Garcia-Flores exercised sufficient dominion and control over the heroin when the evidence is viewed in the light most favorable to the government. Garcia-Flores was in the "load car". He and Canchola transported the heroin to the Red Lion Inn. As part of his counter-surveillance activities, Garcia-Flores was charged with protecting the drugs, and he attempted to escape with the drugs. Finally, the meeting at the post office provides circumstantial evidence that Garcia-Flores knew the Tide box contained heroin.

Additionally, Garcia-Flores need not actually distribute the heroin to be liable for its distribution under an aiding and abetting theory of liability. United States v. Savinovich, 845 F.2d 834, 838 (9th Cir.), cert. denied, 488 U.S. 943 (1988). We may uphold the conviction if Garcia-Flores associated with the criminal venture, participated in it, and sought by his actions to make it succeed. Id. For the reasons stated above, sufficient evidence exists for the jury to infer that Garcia-Flores aided and abetted the distribution of the heroin.

Finally, the government may prove liability under a co-conspirator theory. Based on Pinkerton v. United States, 328 U.S. 640 (1946), Garcia-Flores may be guilty even if he did not directly participate in the drug transaction. United States v. Crespo de Llano, 838 F.2d 1006, 1019 (9th Cir. 1987); United States v. Anderson, 813 F.2d 1450, 1460 (9th Cir. 1987). As noted in Pinkerton, for "so long as the partnership in crime continues, the partners act for each other in carrying it forward." 328 U.S. at 646; Crespo de Llano, 838 F.2d at 1019. The trial court instructed the jury on Pinkerton liability, and as discussed above, the Government presented sufficient evidence to connect Garcia-Flores to the conspiracy.

JURY INSTRUCTIONS

Garcia-Flores argues that the court committed prejudicial error when it refused to give his requested jury instruction. Based upon United States v. Bagby, 451 F.2d 920 (9th Cir. 1971), Garcia-Flores sought an instruction that his co-conspirators' possession could not be imputed to him merely because he belonged to the conspiracy. However, Garcia-Flores' reliance on Bagby is misplaced. First Bagby dealt with the former 21 U.S.C. § 174 which listed knowledge of importation as an essential element of the crime. Id. at 928. A jury could infer this knowledge if it found that a defendant possessed the drug. Id. However, the court stated that "the possession of conspirator A cannot be imputed to conspirator B for the purpose of permitting the statutory inference of importation and knowledge of importation to be drawn against conspirator B." Id. at 929. This case presents a different scenario since we are not dealing with an inference of knowledge of importation. Additionally, the trial court expressly instructed the jury that it must find that Garcia-Flores intended to further the conspiracy's goal of selling heroin. Unlike the situation in Bagby, the jury was not allowed to infer intent. Second, more recent Ninth Circuit decisions have approved of Pinkerton liability in section 841 convictions. See, e.g., Crespo de Llano, 838 F.2d at 1019; Anderson, 813 F.2d at 1460.

JUVENILE STATUS

Finally, Garcia-Flores argues that the court improperly tried him as an adult since he was a juvenile. Garcia-Flores initially claimed that he was born on May 6, 1968. He subsequently gave birth dates of May 6, 1968 and May 6, 1971 to his probation officer. After his conviction but prior to sentencing, he stated his birth date was May 6, 1970. The trial court received evidence on this issue and heard the testimony of Garcia-Flores, his natural mother and his adoptive mother. The trial court found that this testimony was contradictory and failed to establish Garcia-Flores' juvenile status. Garcia-Flores has given several different years of birth, and his mothers' testimony failed to establish his year of birth. The court was also presented with conflicting testimony regarding Garcia-Flores' age upon the completion of high school. In concluding, the court determined "that the preponderance of the evidence is that the defendant was born on May 6, 1968." Excerpt of Record, p. 55. On appeal, Garcia-Flores fails to demonstrate that the trial court's finding was erroneous, and that he was in fact a juvenile. Thus, we uphold the trial court's decision on this issue. See United States v. Alvarez-Porras, 643 F.2d 54, 66-67 (2nd Cir.), cert. denied, 454 U.S. 839 (1981).

Based on the above analysis, we AFFIRM Garcia-Flores' conviction.