Unpublished Disposition, 927 F.2d 610 (9th Cir. 1989)

MEMORANDUM^* 

FACTS AND PROCEEDINGS BELOW

Around 10:00 a.m. on February 18, 1989, the defendant, Juan Anguiano and his uncle, Gonzalo Anguiano, approached the Douglas, Arizona port of entry from Mexico in a 1973 Ford van. The defendant was driving. Customs Inspector Ron Martin asked the defendant for proof of citizenship and a few routine questions. Inspector Martin noticed that the defendant would not look at him and instead looked at the passenger before answering each question. The defendant stated that he was not bringing anything into the United States from Mexico. Inspector Martin observed that the defendant's hands were shaking when he handed over his immigration cards. Inspector Martin further stated that he detected a smell of fresh paint and wood coming out of the van. Martin then directed the defendant to drive the van to the secondary inspection area. Customs Inspector Norma Chavez asked the defendant a few more questions at the secondary inspection area. Again, the defendant was hesitant and looked at his uncle before responding to her questions. The defendant told Chavez they were coming from Chihuahua, Mexico.

Inspector Chavez inspected the undercarriage of the van and saw that the water drainage holes of the frame channel were filled with putty. Chavez also noted that the part of the frame was secured with shiny, new bolts. Chavez suspected there was contraband in the frame rails and notified her supervisor, Inspector Manriquez. Manriquez instructed the canine enforcement officer to bring his dog and check the van for narcotics. The dog made a positive alert on the right side of the van. Inspector Chavez then drove the van to the garage for closer inspection. Chavez noticed that the driver's seat was attached very loosely and felt as if it was going to fall over. At the garage, Inspector Martin drilled into the frame channel and observed a green leafy substance in the frame channel and on the drill bit. Chavez and Martin both detected a strong odor of fresh paint when they inspected the inside of the van. The inspectors removed the carpet, the driver's seat and part of the floor and found that the sheet metal concealed approximately 64 pounds, or about 29 kilograms, of marijuana wrapped in plastic. Chavez and Martin also found in the van several documents whose contents, significance and admissibility are discussed below.

After the defendant was arrested and waived his rights, Customs Investigator Sean Bray questioned him about his trip to Mexico. The defendant stated that he had traveled to Chihuahua, Mexico with his uncle Gonzalo. He also said they stayed with his aunt, but could not remember where she lived in Chihuahua. The defendant also stated that the van had broken down in Mexico and that the repair took three days. He explained that bad road conditions in Mexico had caused the seats to become loose. When asked about the marijuana in the van, the defendant told Inspector Bray that he did not know anything about any marijuana. Gonzalo was also arrested and questioned by Inspector Bray, with Inspector Manriquez acting as an interpreter. Gonzalo also denied knowing anything about the marijuana in the van.

On March 8, 1989, Juan Anguiano was charged with four counts: (1) conspiring with Gonzalo Anguiano to import marijuana, (2) importation of marijuana, (3) conspiring with Gonzalo Anguiano to possess marijuana with intent to distribute, and (4) possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1), 841(b) (1) (D), 846, 952(a), 960(a) (1), 960(b) (4) and 963. The defendant moved to exclude the documents found by the inspectors during their search of the van. He argued that the documents were inadmissible hearsay and that the government had not provided proper foundation for the admission of the documents. After a hearing, the district court denied defendant's motion.

A jury trial was held and defense counsel timely renewed the hearsay objections to the documents as they were offered by the government. The district court ruled the documents were admissible. At the close of the government's case, which included the testimony of inspectors Martin, Chavez, Manriquez, and Bray, the defendant made a motion for acquittal. The court denied the motion. The defendant then offered his own evidence--the testimony of Gonzalo Anguiano. Gonzalo's testimony differed dramatically from what he told the customs officials at the time of his arrest. Gonzalo testified that while he was in Chihuahua a friend borrowed his van. Upon returning the van, the friend told Gonzalo that he had placed ten pounds of marijuana in the floor of the van and said he would pay Gonzalo $500 to take it to the United States. Gonzalo agreed but testified that he did not tell his nephew, the defendant, anything about the marijuana. Despite his uncle's testimony, the defendant was convicted on all four counts. He timely appeals the admission of the documentary evidence and the denial of his motion for acquittal.

ANALYSIS

Admissibility of the Documentary Evidence.

Anguiano timely objected to the admission of five documents offered as part of the government's case: (1) the van's registration slip from the California Department of Motor Vehicles; (2) the receipt from registering the van with the State of California; (4) a Mexican vehicle permit issued to Gonzalo Anguiano; (3) Juan Anguiano's Mexican travel permit; and (5) a medical prescription for Jose Anguiano from a doctor in Michoacan, dated February 9, 1989. The defendant contends that the documents were inadmissible under the hearsay rule and were admitted in violation of his Sixth Amendment right of confrontation. We review a district court's admission of evidence for abuse of discretion. United States v. Kirk, 844 F.2d 660, 663 (9th Cir.), cert. denied, 488 U.S. 890 (1988). The same standard governs our review of a district court's decision regarding authenticity of evidence.

Anguiano first contends that the documents were not properly authenticated. Under Fed.R.Evid. 901(a) " [t]he requirement of authentication ... as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponents claim." The travel permit was in the defendant's wallet which was found inside the van. The registration slip and receipt from the California Department of Motor Vehicles and the Mexican vehicle permit were found in the van's glove compartment. The defendant challenges the trustworthiness of these documents; however, he does not claim they were false or show any motive for anyone to misrepresent the documents. The district court could have properly found that the documents were adequately authenticated by the fact of being found in the van--a place where they would usually be found. See Burgess v. Premier Corp., 727 F.2d 826, 835 (9th Cir. 1984).

The district court properly admitted the Mexican travel permit signed by the defendant. Anguiano's signature shows he adopted the contents of the permit, including his intended destination of Michoacan. The permit is not hearsay, but an admission by the defendant under Fed.R.Evid. 801(d) (2) (B). The district court also properly admitted the registration slip and receipt from the California Department of Motor Vehicles. The public records exception to the hearsay rule provides that " [r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... the activities of the office or agency" are admissible. Fed.R.Evid. 803(8) (A). The registration of automobiles is clearly a routine, non-adversarial activity of the Department of Motor Vehicles. See United States v. DeWater, 846 F.2d 528, 530 (9th Cir. 1988). The registration slip and receipt are public records admissible under Rule 803(8) (A). The issuance of vehicle permits is also a routine function of Mexican border officials. Therefore the vehicle permit issued to Gonzalo was properly admitted.

We agree with Anguiano that the medical prescription was both unauthenticated and inadmissible hearsay. The Government erroneously contends that the prescription was not hearsay because it was offered only to impeach the defendant's statements that he went to Chihuahua. The prescription is not relevant unless the jury accepts the truth of the matter asserted: that Anguiano intended to go to or actually went to Michoacan. Moreover, because Anguiano did not make or endorse the prescription, it does not have any impeachment value unless the jury first accepts its contents as true. The error in admitting the prescription, however, was harmless. The document was not the heart of the government's case; its case rested on the observations and testimony of the four custom officials who inspected the van and questioned the defendant.

Finally, Anguiano argues that his Sixth Amendment right to confrontation was violated by the admission of the documents. We disagree. Admission of the registration and receipt from the California Department of Motor Vehicle as well as the Mexican vehicle permit do not compromise the defendant's confrontation rights as they fall within a firmly rooted hearsay exception. See Bourjaily v. United States, 483 U.S. 171, 181 (1987). Moreover, because the hearsay document was but a small part of the record and was not relied on by the government as substantive evidence, no prejudice to Anguiano resulted from their admission.

Sufficiency of the Evidence.

Anguiano moved for acquittal at the close of the government's evidence but his counsel failed to renew the motion at the end of the trial. Therefore Anguiano effectively waived his objection to the sufficiency of the government's evidence. United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989). We will, however, review the sufficiency of the government's evidence to prevent a manifest miscarriage of justice and for plain error. Id. If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm the judgment. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Of course, we review the evidence in the light most favorable to the government. United States v. Mundi, 892 F.2d 817, 820 (9th Cir. 1989).

The evidence amply supports the jury verdict finding Anguiano guilty of importation of marijuana and possession with intent to distribute. Anguiano contends that the government failed to offer any direct or circumstantial evidence that he knowingly possessed the marijuana. The evidence shows, however, that Anguiano drove a van with 64 pounds of marijuana concealed in its frame and tried to enter the United States. The jury could infer from this evidence that Anguiano knowingly possessed the marijuana and was capable of exercising dominion and control over it. See United States v. Mora, 876 F.2d 76, 77-78 (9th Cir. 1989); United States v. Collins, 764 F.2d 647, 652 (9th Cir. 1985) (mere possession of a substantial quantity of contraband is sufficient to support a finding of defendant's knowledge). The jury was entitled to disbelieve the defendant's statement to custom officials that he did not know there was marijuana in the van. See United States v. Goode, 814 F.2d 1353, 1356 (9th Cir. 1987). Moreover, Anguiano's possession of a large quantity of marijuana is sufficient to find that he intended to distribute the marijuana.

Likewise there was no error in Anguiano's conviction for conspiring to import and distribute marijuana. To demonstrate a conspiracy, the government need not show an explicit agreement to engage in criminal activity--an "implicit agreement may be inferred from the facts and circumstances of the case." United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 179 (1989) (citation omitted). Despite Gonzalo's testimony that the defendant did not know anything about the marijuana, the jury could rationally conclude that the defendant and his uncle conspired to import and distribute the marijuana.

AFFIRMED.