Unpublished Disposition, 931 F.2d 61 (9th Cir. 1990)

MEMORANDUM^* 

Silvano Diaz-Garcia appeals his conviction following a jury trial of conspiracy to distribute heroin, possession with intent to distribute heroin, and possession of a firearm while trafficking in drugs. He was also convicted for being an illegal alien in possession of a firearm, but does not appeal that conviction. Mr. Diaz-Garcia argues that the evidence on each count was insufficient to convict and that the jury instructions regarding reasonable doubt were defective. The district court had jurisdiction to hear the federal charges, 18 U.S.C. § 3231, and this court has jurisdiction of the timely appeal, 28 U.S.C. § 1291. We affirm.

A jury verdict should be reversed only when no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Cuevas, 847 F.2d 1417, 1421 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989). The evidence is viewed in the light most favorable to the Government and includes all reasonable inferences that can be drawn in the Government's favor. Id. Therefore, the following facts are presented in the light most favorable to the Government.

BACKGROUND

On May 11, 1989, Mr. Diaz-Garcia travelled as a passenger in a pick-up truck to a motel in Phoenix. The truck followed a van carrying co-defendant Francisco Lopez and a government informant, Leroy Leal, who were in the process of negotiating a drug transaction. At the motel, the co-defendants entered the motel and Mr. Diaz-Garcia stayed in the parking lot. A government surveillance agent observed him "milling around the back portion of the pickup truck outside looking up and down the parking lot." United States v. Diaz-Garcia, CR 89-190 PHX CLH, Trial Transcript Vol. 2 at 45-46 (D. Ariz. March 14, 1990). He looked towards a gas station (where another surveillance vehicle was parked) for about ten or fifteen seconds and then resumed walking around at a slow pace, looking in all directions.

Inside the motel, undercover agents David Wright, David Miranda, and Benjamin Quezada negotiated to buy five ounces of heroin. Co-defendant Jose Manuel Rayo-Bracamontes handed some of the heroin over to Agent Quezada (50.1 grams) and said that he would go down to the truck to get the remaining three ounces. The co-defendants were arrested before he did so.

Mr. Diaz-Garcia was arrested at the same time. The arresting officers testified that as they placed him against the back of the truck, he dropped a set of vehicle keys in the bed of the truck. Mr. Rayo-Bracamontes testified that he never gave the truck keys to Mr. Diaz-Garcia, but left them in the bed of the truck himself. Mr. Diaz-Garcia denied having any keys when he was arrested and testified that he did not know how to drive. He stated that he had not entered the motel room with the others because he was not invited. The arresting officers also found a loaded Beretta 380 semiautomatic pistol in Mr. Diaz-Garcia's rear waistband and 74.1 grams of heroin on the front seat of the truck under a tee-shirt.

Mr. Diaz-Garcia was indicted on four counts: conspiracy to distribute heroin, 21 U.S.C. § 846, possession with intent to distribute heroin, 21 U.S.C. § 841(a) (1), possession of a firearm during drug trafficking, 18 U.S.C. § 924(c) and possession of a firearm by an illegal alien, 18 U.S.C. § 922(g). He was convicted on all four counts and appeals the first three.

DISCUSSION

To prove conspiracy to distribute heroin, the Government must show an agreement to distribute and some overt act in furtherance of the conspiracy. United States v. Penagos, 823 F.2d 346, 348 (9th Cir. 1987). The existence of a conspiracy may be proved by circumstantial evidence. Id. Once a conspiracy is established, slight evidence of a defendant's knowing participation in the conspiracy, if proved beyond a reasonable doubt, is sufficient to convict. Id. This court said in Penagos that " [w]hile mere proximity to the scene of illicit activity is not sufficient to establish involvement in a conspiracy, a defendant's presence may support such an inference when viewed in context with other evidence." Id.

Mr. Diaz-Garcia does not dispute that the Government established a conspiracy between Mr. Lopez and Mr. Rayo-Bracamontes. Therefore, the government need only prove Mr. Diaz-Garcia's knowing participation in that conspiracy by circumstantial evidence. The Ninth Circuit has found sufficient evidence of knowing participation in a conspiracy when there was no evidence that the defendant had ever handled or transported the drugs or money involved, but had maintained a residence with the direct participant in the drug deals, was present when the drugs were divided at that residence, and was spotted at the scene of the sale. United States v. Hernandez, 876 F.2d 774, 778 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989). The Ninth Circuit also has found sufficient evidence to convict a defendant when a co-conspirator told an undercover agent that he was going to get the drugs, proceeded to meet with the defendant and another woman, and then returned with the drugs. United States v. Federico, 658 F.2d 1337, 1344 (9th Cir. 1981), overruled on other grounds, United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). No communication between the defendant and the co-conspirator, or direct evidence that he handled the drugs at any time, was offered at trial. Id. at 1341.

In contrast, the Ninth Circuit has reversed a conspiracy conviction for insufficient evidence when the defendant appeared to be performing counter-surveillance while drugs were loaded into a car on only one of several occasions, and apparently was not present during any of the drug trafficking negotiations. The court emphasized that the defendant never performed counter-surveillance during an actual sale. Penagos, 823 F.2d at 349-50. Similarly, this court reversed a conspiracy conviction when the Government produced no evidence of knowledgeable participation beyond the facts that the defendant provided transportation to the conspirators during a drug transaction. United States v. Cloughessy, 572 F.2d 190, 190-91 (9th Cir. 1977). The defendant waited in the car during the transaction and even followed one of the undercover agents who left the negotiations to get money because he said he was surprised that the agent had access to a car. There was evidence that the defendant was only a casual acquaintance of the co-conspirators and had agreed to provide transportation during a birthday party immediately before the transaction. Id.

The evidence provided at trial in this case most closely resembles in weight and specificity the evidence which this court has found to be sufficient for conspiracy convictions in Hernandez and Federico. From Mr. Diaz-Garcia's behavior at the motel, strolling around the parking lot and observing the surroundings, the jury could infer that he was engaged in counter-surveillance. Counter-surveillance qualifies as an act in furtherance of a conspiracy, Penagos, 823 F.2d at 348, and, unlike the defendant in Penagos, Mr. Diaz-Garcia's counter-surveillance occurred at a crucial time in the drug transaction. The pistol found in Mr. Diaz-Garcia's waistband further supports an inference that he was a knowing participant in the drug trafficking. Cf. United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.) (guns seized from defendant's residence are admissible in trial for possession of drugs with intent to distribute), cert. denied, 488 U.S. 943 (1988); United States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir. 1988) ("firearms can be relevant to show ... involvement in the narcotics trade"). Also, the arresting officer testified that Mr. Diaz-Garcia had a set of vehicle keys in hand that he dropped in the bed of the truck when he was arrested, suggesting that although he had been only a passenger when the truck drove into the motel parking lot, he was left with control of the truck while the others entered the motel. Each of these facts supports the inference that Mr. Diaz-Garcia knowingly participated in the conspiracy and took action to further its purposes.

We affirm, as supported by sufficient evidence, Mr. Diaz-Garcia's conviction of conspiracy to distribute heroin.

II. POSSESSION OF HEROIN WITH THE INTENT TO DISTRIBUTE

As a co-conspirator, Mr. Diaz-Garcia could be convicted of possession of heroin with intent to distribute it even if he did not possess it, but one of his co-conspirators did. Pinkerton v. United States, 328 U.S. 640 (1946). The district court judge clearly instructed the jury regarding this principle of law. Diaz-Garcia, Trial Transcript Vol. 4 at 49-50. Therefore, this court can apply the principle on appeal. Cf. United States v. Disla, 805 F.2d 1340, 1350 (9th Cir. 1986).

The evidence produced at trial showed that co-conspirator Mr. Rayo-Bracamontes possessed 50.1 grams of heroin on his person at the time of the arrest. He had also stated his intention to return to the truck to retrieve the other 74.1 grams which were included in the sale. He was convicted of possession of 100 grams or more of heroin. Mr. Diaz-Garcia's conviction for possession of 100 grams or more of heroin can be affirmed based on Mr. Rayo-Bracamontes' conviction because he is a member of the same conspiracy.

Under the Pinkerton theory, we affirm Mr. Diaz-Garcia's conviction of possession of 100 grams or more of heroin with intent to distribute. The evidence that Mr. Diaz-Garcia possessed a gun during the drug deal is undisputed. Because we affirm his conviction for possession of heroin, we also affirm his conviction for firearm possession while trafficking in drugs.

The plaintiff argues that the district court's jury instruction was defective for, one, failing to advise the jury that reasonable doubt could be based on lack of evidence, two, negating the presumption of innocence, and, three, defining reasonable doubt as a doubt based on reason and common sense. Because trial counsel did not object to the reasonable doubt instruction at trial, this court can reverse a conviction based on the instruction only if it is in plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986). Reversal for plain error is an exceptional remedy used only to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. Id.

The Ninth Circuit Model Jury Instructions state that a reasonable doubt "may arise from a careful and impartial consideration of all the evidence, or from lack of evidence." Instruction No. 3.03 (West 1989). The district court judge's instructions in this case omitted the last phrase, "or from lack of evidence." Although the phrase is helpful because it emphasizes that a defendant has no burden of proof, its omission in this case does not constitute plain error. In another part of the instructions, the judge emphasized the presumption of innocence and the Government's burden of proof:

And you must not think the defendants are guilty merely because they have been accused. They are presumed to be innocent, and they do not have to prove that they are not guilty. They have pleaded not guilty to the charges.

Before any of them can be found guilty of any one of the charges, the government must prove beyond a reasonable doubt by the evidence that a defendant is guilty of that charge.

Diaz-Garcia, Trial Transcript Vol. 4 at 46. The jury knew that they must acquit Mr. Diaz-Garcia if there was no evidence to establish his guilt beyond a reasonable doubt. The omission was not plain error.

The appellant also argues that the judge's instruction to the jury to review impartially all the evidence negated the presumption of innocence, which is essentially a command to begin with partiality for the defendant. The appellant's argument is without merit. A jury member should be partial toward the defendant's innocence before considering the evidence, but the evidence offered must be viewed as impartially as possible with an eye to ascertaining the truth. Both the Ninth Circuit Model Jury Instruction 3.03 and Devitt & Blackmar's Model Instruction Sec. 11.14 state that evidence should be considered impartially. Devitt & Blackmar even include the direction in the same sentence with the presumption of innocence:

So the presumption of innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial consideration of all the evidence in the case.

Devitt & Blackmar, Federal Jury Practice and Instructions, Vol. 1 Sec. 11.14 (1977). The direction to view the evidence impartially does not negate the presumption of innocence.

Finally, the appellant argues that the judge's definition of reasonable doubt as one based on reason and common sense, rather than reason or common sense, requires a jury to convict unless both logic and common sense create doubt. The appellant argues that there is an important difference between logic and common sense and a jury should not convict if either creates doubt. Both the Ninth Circuit Model Instruction 3.03 and Devitt & Blackmar's Model Instruction Sec. 11.14 use the word "and" instead of "or," but could use the words interchangeably and still communicate the intended meaning. The instruction given in this case, considered in its entirety, made it abundantly clear that a reasonable doubt, of whatever kind and from whatever source, should result in acquittal.

We do not find plain error in the jury instructions.

CONCLUSION

We AFFIRM, as supported by sufficient evidence, Mr. Diaz-Garcia's conviction for conspiracy to distribute heroin, possession of heroin with intent to distribute, and possession of a firearm while drug trafficking. Also, we find no plain error in the district court's reasonable doubt instruction.