Unpublished Disposition, 931 F.2d 898 (9th Cir. 1989)

MEMORANDUM^** 

Enrique Gutierrez appeals his convictions, following a jury trial, for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a) (1), attempting to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a) (1) and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a) (1). He contends that there was insufficient evidence to support each conviction. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

On April 15, 1989, customs inspectors at the port of entry in Arizona stopped Alvaro Gastelum-Angulo. The inspectors recovered approximately 29 pounds of cocaine from the gas tank of Gastelum-Angulo's car, a Thunderbird. Gastelum-Angulo revealed that he was driving to Corona, California. He subsequently agreed to participate in a controlled delivery of the cocaine. The next day, Gastelum-Angulo was instructed to tell his contact that the Thunderbird had broken-down in a mall in Riverside, California. Shortly after, Gutierrez and two other co-defendants arrived at the mall in a Cadillac and Gutierrez repaired the Thunderbird. The DEA agents followed both vehicles out of the mall, and eventually observed Gutierrez driving the Thunderbird into the garage of his residence in Corona. Shortly thereafter, the DEA agents entered the garage and discovered Gutierrez lying beneath the Thunderbird attempting to remove its gas tank. The agents immediately arrested Gutierrez, and searched the residence where they discovered approximately four pounds of heroin.

Following a jury trial, Gutierrez was convicted of conspiracy attempt to possess with intent to distribute cocaine, and possession of herion. The district court sentenced Gutierrez to 188 months in prison.

Standard of Review

Sufficient evidence to support a conviction exists if "a reasonable jury, after viewing the evidence in the light most favorable to the government, could have found the defendants guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.) (citation omitted), cert. denied, 110 S. Ct. 179 (1989); Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Conspiracy to Possess with Intent to Distribute Cocaine

"To prove a conspiracy, the government must show 1) an agreement 2) to engage in criminal activity and 3) one or more overt acts in furtherance of the conspiracy. 'The prosecution need not show the agreement to have been explicit. An implicit agreement may be inferred from the facts and circumstances of the case.' " Hernandez, 876 F.2d at 777 (quoting United States v. Monroe, 552 F.2d 860, 862 (9th Cir.), cert. denied, 431 U.S. 972 (1977)). "Once the existence of a conspiracy is shown, evidence establishing beyond a reasonable doubt a knowing connection of the defendant with the conspiracy, even though the connection is slight, is sufficient...." United States v. Meyers, 847 F.2d 1408, 1413 (9th Cir. 1988) (defendant's role as a middleman in cocaine transaction sufficient to "establish more than an 'unwitting' connection to scheme to distribute cocaine").

Here, the government introduced ample evidence to support the jury's conclusion that Gutierrez conspired to possess with the intent to distribute cocaine. Gutierrez was present and active during each phase of the controlled delivery. He appeared at the mall to repair the Thunderbird, which at one time contained the cocaine, and he accompanied the co-conspirators when they left the mall. Later, Gutierrez drove the Thunderbird to his house, followed by a co-conspirator in a separate car. Gutierrez parked the Thunderbird in his garage and closed the door. The government agents observed Gutierrez beneath the Thunderbird apparently working on its gas tank while the co-conspirator watched. Following his arrest, Gutierrez was recorded making comments to the co-conspirator indicating that they were in trouble and suggesting that he was aware of the entire cocaine smuggling scheme.

Viewed in the light most favorable to the government, this evidence could lead a rational trier of fact to conclude beyond a reasonable doubt that Gutierrez was connected to the conspiracy to distribute cocaine. See Meyers, 847 F.2d at 1413.¹ 

Attempt to Possess Cocaine

To sustain a conviction for attempt, the government must show that the defendant intended to engage in the criminal conduct and that he committed one or more overt acts which constituted a substantial step toward the consummation of the object offense. United States v. Scott, 767 F.2d 1308, 1311 (9th Cir. 1985). A defendant's statements can establish his criminal intent. United States v. Runco, 873 F.2d 1230, 1232 (9th Cir. 1989).

Here, as discussed above, the evidence was sufficient to support the jury's conclusion that Gutierrez was a member of the cocaine distribution conspiracy and intended to possess the cocaine. The conversation between Gutierrez and the co-conspirator following their arrests reflected their criminal intent. See Runco, 873 F.2d at 1232. Government agents observed Gutierrez working beneath the Thunderbird near the gas tank and he was holding tools. Earlier, border agents had discovered and removed packs of cocaine from the gas tank of the Thunderbird during an inspection. Thus, removing or tampering with the gas tank was a necessary step toward possessing the cocaine. A rational trier of fact could conclude beyond a reasonable doubt that Gutierrez possessed the requisite criminal intent and that he was in the process of attempting to recover the confiscated cocaine. See id.

Possession of Heroin

Under a theory of constructive possession, the defendant must have "sufficient dominion and control to give him the power of disposal.... Possession and knowledge can be established by circumstantial evidence.... 'Mere proximity to contraband, presence on property where it is found and association with a person or persons having control of it are all insufficient to establish constructive possession.' " United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1989) (citations omitted) (quoted in Hernandez, 876 F.2d at 778). An admitted possessory interest in the premises where contraband is found raises an inference of constructive possession. See Hernandez, 876 F.2d at 778.

Here, the arresting government agents searched Gutierrez's residence and discovered approximately four pounds of heroin and drug paraphernalia in a trash bag in the bedroom closet. Gutierrez told the officers he was renting the house and had slept there the previous night. The officers observed that the house was bare but for pillows and blankets in the bedroom where the heroin was recovered. Although the rental agreement was signed by Gutierrez and Jose Almos Lopez, Gutierrez apparently was the only occupant in the house at the time of his arrest. Nothing suggests that anyone but Gutierrez used the house or owned the heroin. Accordingly, a rational jury could have found that Gutierrez had knowledge, control and possession of the heroin. See Hernandez, 876 F.2d at 778; United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990) (evidence that defendant had control of bedroom where contraband recovered supports inference of possession).

AFFIRMED.