Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

MEMORANDUM^** 

Laureno Pedroza Micolta contends on appeal that there is insufficient evidence to support his convictions following a bench trial on charges of conspiracy to possess and distribute cocaine, 21 U.S.C. § 846 (1988), and possession with intent to distribute cocaine, 21 U.S.C. § 841(a) (1) (1988). We reject his contention and affirm.

* Micolta was convicted of conspiracy to distribute and to possess with the intent to distribute cocaine. He contends that even viewed in the light most favorable to the government, the evidence shows that there were actually several distinct conspiracies to distribute cocaine and that he was not involved in the alleged overall conspiracy.

To prove the existence of a single conspiracy rather than a series of multiple conspiracies, the government must show that an overall agreement existed among the conspirators. United States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984), cert. denied, 471 U.S. 1103 (1985). "The relevant factors include the nature of the scheme; the identity of the participants; the quality, frequency, and duration of each conspirator's transactions; and the commonality of time and goals." Id. Once an overall conspiracy has been proven, a defendant can be convicted of knowing participation in it even if the defendant's connection to the conspiracy is only slight. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). A defendant need not participate in every overt act to be considered a member of the overall conspiracy. United States v. Disla, 805 F.2d 1340, 1348 (9th Cir. 1984).

Here, the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Micolta was a member of the conspiracy charged in the indictment. Micolta was instrumental in establishing contacts between a seller of cocaine, a government informer posing as a middleman, and an undercover federal agent representing himself as a buyer. He participated in negotiations for the sale of cocaine, and sold a sample of cocaine to the informer. There is evidence that Micolta was to receive compensation for his participation in the drug sales. He facilitated the sale of cocaine by keeping an undercover federal agent informed of sources of cocaine, dates of potential deals, and on at least one occasion, giving the informer gas money to enable him to drive to the location of a planned drug transaction.

These facts show that there was one overall conspiracy to sell cocaine. See Bibbero, 749 F.2d at 587-88. Although Micolta was not present during the actual delivery of cocaine, his meetings with the informer and the agent, and his assurances that the deal would go through indicated that he remained a member of the overall conspiracy. See Disla, 805 F.2d at 1348-49.

II

Micolta was charged with possession with intent to distribute ten kilograms of cocaine. He contends that there is insufficient evidence to prove his possession since he was not present during the sale of the cocaine. The government concedes that Micolta had neither actual nor constructive possession of the cocaine. Instead the government attaches liability for the substantive offense under a theory of co-conspirator liability. Under that theory, " [a] party to a conspiracy is liable for the acts of his co-conspirators in furtherance of the conspiracy ... even if he is unaware of the existence of the acts or actors." United States v. Testa, 548 F.2d 847, 855 (9th Cir. 1977) (citing Pinkerton v. United States, 328 U.S. 640, 647 (1946)). We conclude that Micolta, as a member of the overall conspiracy, may be held liable for substantive offenses committed by his co-conspirators.

Micolta nevertheless argues that the government cannot rely on co-conspirator liability because it failed to raise the theory during trial. See Disla, 805 F.2d at 1350 (government may not rely on co-conspirator liability theory on appeal where it did not request an appropriate jury instruction). We reject that argument. No jury instructions are prepared for bench trials. Moreover, the government specifically cited the theory of co-conspirator liability in its trial memorandum to the court.

AFFIRMED.