Unpublished Disposition, 932 F.2d 973 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 932 F.2d 973 (9th Cir. 1990)

No. 87-5177.

United States Court of Appeals, Ninth Circuit.

Before CANBY, and RYMER, Circuit Judges, and LEVI, District Judge.* 

MEMORANDUM** 

Defendant Jose Luis Leon appeals his conviction by jury trial for conspiring to import cocaine, 21 U.S.C. § 846 (count one), possession of cocaine with intent to distribute, 21 U.S.C. § 841(a) (1) (count three), and distribution of cocaine, 21 U.S.C. § 841(a) (1) (count four). Leon was tried jointly with five co-defendants on the first four counts of a thirteen-count indictment which alleged a conspiracy to import cocaine from Bolivia to the United States. At the close of the evidence the district court dismissed count two, which had charged a conspiracy to possess cocaine with intent to distribute, as to all defendants. Leon was sentenced to a three-and-a-half year prison term on count one plus a five year term of probation on counts three and four. On June 8, 1990, Leon timely noticed this appeal. This court's jurisdiction is proper pursuant to 28 U.S.C. § 1291.

A. The Indictment Properly Charged a Single Conspiracy

Leon contends that a variance existed between the conspiracy charged in count one of the indictment and the government's proof at trial. Leon argues that two distinct conspiracies existed, that his role in each differed materially, that the indictment charged only the second conspiracy, but that at trial the government offered proof as to both conspiracies. Specifically, Leon argues that because he and co-defendant Malpezzi were unable to raise the necessary funds to purchase cocaine, his role changed from that of buyer to that of assistant, and that this change was sufficient to terminate what he views as the first conspiracy.

Count one of the indictment charged that beginning on a date unknown and continuing to June 29, 1986, defendant Leon conspired with others to import cocaine in violation of 21 U.S.C. § 952(a). The indictment alleged that the defendants "organized and put into operation a scheme to import cocaine from Bolivia," by arranging "for a pilot and crew [to] fly from the United States to Bolivia, South America to pick up cocaine and to smuggle it back into the United States." Excerpt of Record, ex. 5, at 2.

The facts elicited at trial demonstrated that in January, 1986, an informant of the Drug Enforcement Agency (DEA), Ferris Ashley, learned that a Los Angeles lawyer, John Malpezzi, was seeking air transportation to import cocaine from Bolivia. With the approval of the DEA, Ashley began meeting with Malpezzi to formulate a plan to smuggle cocaine into the United States. Reporter's Transcript (R.T.), vol. 3, at 19-24. Leon was an acquaintance of Malpezzi. As the conspiracy progressed, Leon served as a translator for his co-conspirators. R.T., vol. 3, at 33-37, 42; R.T., vol. 7, at 12. Leon also contributed his own thoughts, questions and ideas to the plan. R.T., vol. 7, at 13. On February 13, 1986, Malpezzi told Ashley that the Bolivian cocaine supplier had sold the bulk of his immediate inventory of cocaine to another party, but added that because Malpezzi and Leon had served as brokers to that deal they were to receive 73 kilograms of cocaine as compensation. R.T., vol. 3, at 55. Ashley agreed to help Leon and Malpezzi dispose of the 73 kilograms, which plan the parties refer to as the "side deal". R.T., vol. 3, at 55-61. In the pursuit of the side deal Ashley examined approximately one kilogram of cocaine in Leon's car. R.T., vol. 3, at 57-61. Leon attended and participated in subsequent meetings discussing plans for disposing of the 73 kilograms of cocaine. R.T., vol. 3, at 61-68; R.T., vol. 11, at 106-112.

In the meantime, the plan to import a large quantity of cocaine from the same Bolivian connection pressed forward. Leon attended and participated in ongoing meetings regarding the drug smuggling venture. R.T., vol. 3, at 76-77. During one such meeting, Malpezzi referred to himself, Leon, and Ashley as "general partners" in the plan to import cocaine from Bolivia. R.T., vol. 11, at 108. On March 26, 1986, Malpezzi and Ashley flew to Bolivia to attempt to expedite the plan. R.T., vol. 3, at 76-81. Following negotiations, a deal was proposed whereby the sellers agreed to accept $500,000 cash and a $3,500,000 letter of credit in exchange for a quantity of cocaine. Back in the United States, Leon provided Ashley with the name and telephone number of a co-defendant who Leon thought could obtain the letter of credit. R.T., vol. 3, at 113.

During this period Leon and Malpezzi became liable for $60,000 in transportation costs incurred by Ashley in furtherance of the conspiracy. R.T., vol. 3, at 135-36. In the process of attempting to acquire these funds, Leon gave Ashley $7,000 in cash on two separate occasions, R.T., vol. 3, at 155-56, and participated in a meeting at which Malpezzi gave one kilogram of cocaine to Ashley and DEA Agent Lee as further payment. R.T., vol. 3, at 188-89.

On May 27, 1986, Leon made arrangements for a trip Ashley made to Bolivia in order to finalize details of the plan. R.T., vol. 4, at 32-33. Also during May, 1986, the smugglers learned that a DEA front company, Pacific Basin Investments, might supply the funds necessary to buy the cocaine. By this time Ashley had expressed his disturbance with Malpezzi and Leon's inability to produce funds as promised. See R.T., vol. 3, at 152-55. Posing as a representative of Pacific Basin Investments, DEA Agent Lochridge engaged in talks with Leon's co-conspirators about providing funds to pay for the cocaine. R.T., vol. 8, at 45-46. Leon continued to be involved in the project, as evidenced by his assisting in the transfer of one kilogram of cocaine from Malpezzi to Ashley and DEA Agent Lee, see R.T., vol. 3, at 188-91; R.T., vol. 11, at 116-20, and making travel arrangements for Ashley to fly to Bolivia. R.T., vol. 4, at 31-33.

Leon contends that he merely attempted, unsuccessfully, to join an embryonic conspiracy to import cocaine in which he and Malpezzi would act as the financiers. Because he and Malpezzi were unable to raise sufficient funds to actually purchase and import cocaine from Bolivia, Leon argues that this conspiracy never came into existence. The plan to import cocaine using funds supplied by Pacific Basin Investments, Leon asserts, constituted an entirely different conspiracy. Leon does not deny his participation in what he views as the second conspiracy, but rather argues that his role changed from that of buyer to that of assistant, and that this change was sufficient to terminate what he views as the first inchoate conspiracy. He contends that the proof at trial included evidence of the "first" conspiracy whereas the indictment only charged the "second" conspiracy. If Leon could demonstrate that there was a variance between the evidence and the charge, and that he was prejudiced as a result, he would be entitled to reversal of his conviction on the conspiracy count. Berger v. United States, 295 U.S. 78, 82 (1935); United States v. Blenn, 828 F.2d 855, 858 (1st Cir. 1987).

A "single conspiracy exists, as compared with multiple conspiracies, where there is ' "one overall agreement" to perform various functions to achieve the objectives of the conspiracy.' A single conspiracy may include subgroups or subagreements. The evidence need not exclude every hypothesis other than a single conspiracy exists." United States v. Patterson, 819 F.2d 1495 (9th Cir. 1987) (citations omitted). Factors relevant to the determination of whether a single conspiracy exists "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." United States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984).

The evidence in this case established that the nature of the scheme was to import cocaine to Los Angeles from Bolivia. The plan's personnel did not meaningfully vary. The Bolivians were to sell the cocaine while Leon and Malpezzi were the initial prospective purchasers. When Leon and Malpezzi failed to provide the necessary funds, they lost their position as buyers, but continued to assist the importation conspiracy. The plan's goal remained to import cocaine from Bolivia to the United States, and that plan was not temporally interrupted. In these circumstances, it appears that the government properly charged and proved a single importation conspiracy. For these reasons, the court finds that Leon's changed in role amounted to a simple permutation, rather than a termination, of the conspiracy.

2. Sufficient Evidence Supported A Finding That Leon Joined the Conspiracy

When reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the government and ask whether " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " United States v. Litteral, 910 F.2d 547, 550 (9th Cir. 1990) (citation omitted) (emphasis in original). To prove a conspiracy the government must show:

(1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. 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.

Id. (citations omitted).

Leon contends that the evidence does not warrant a finding that he was a member of the conspiracy charged in count one. In support he argues that his and Malpezzi's ability to provide the funds to purchase the cocaine constituted a condition precedent to his participation in the conspiracy which was never satisfied. Leon relies on DEA agent Lee's testimony that negotiations for a deal through which Leon and co-defendant Malpezzi were to import cocaine failed because there was no agreement as to payment or financing. Appellant's Brief at 13 (citing R.T., vol. 14, at 21).

Leon rests primarily on United States v. Melchor-Lopez, 627 F.2d 886, 891 (9th Cir. 1980), in support of his contention that no agreement was ever formed sufficient to support a conspiracy conviction. In Melchor-Lopez, the court found the government's evidence insufficient to establish an agreement where one co-defendant had "firmly insisted on certain conditions unacceptable to his would-be co-conspirators." Id. at 891. The Melchor-Lopez court also thought it significant that the government's undercover agent did not believe an agreement existed: "In light of [government] agent Noriega's September 20 report which concluded: 'Rina and Melchor did not reach an agreement,' we hold that no reasonable trier of fact could have found Melchor guilty beyond a reasonable doubt." Id.

In Melchor-Lopez the defendant " 'firmly refused to commit himself' to participate in the conspiracy until money for the drugs was delivered in advance, which did not occur." United States v. Pemberton, 853 F.2d 730, 733 (9th Cir. 1988), quoting Melchor-Lopez, 627 F.2d at 891. In this case Leon placed no such precondition on his participation in the plan and, in fact, participated in a significant fashion. The record demonstrates that the agreement at issue in this case concerned the importation of cocaine, rather than the specific funding source for the purchase. While the conspiracy changed in certain respects, the plan to import cocaine remained firm and Leon's commitment to that plan endured. Moreover, the government offered substantial evidence which supports the jury's verdict that Leon participated in the conspiracy. The government showed: that Leon was among the group of individuals who planned to import cocaine from Bolivia; that he translated for co-conspirators; that he continued to participate in discussions with Malpezzi and Ashley regarding the smuggling venture after Pacific Basin Investments stepped in as a potential financier; that Leon provided Ashley with the telephone number of a co-conspirator in Bolivia who was to arrange financing for the venture; that Leon was present at discussions involving the need to advance $60,000 to pay for travel expenses incurred in furtherance of the conspiracy; that he telephoned Bolivia from Los Angeles in order to allow Ashley to converse with Malpezzi; that he twice provided money and airplane tickets to Ashley for trips to Bolivia; that he arranged for another co-conspirator to furnish some of the needed funds; that he was present in Los Angeles when Malpezzi spoke with Ashley about furnishing him with a kilogram of cocaine and a $30,000 promissory note to cover the transportation costs; that he signed the promissory note; that he drove Ashley in Leon's car to pick up the kilogram of cocaine; and that he introduced Ashley to yet another co-conspirator for the purpose of obtaining transportation funds. Viewing this evidence in the light most favorable to the government, we find that a "rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Litteral, 910 F.2d at 550.

3. Sufficient Evidence Supported Leon's Conviction for Possession with Intent to Distribute and Distribution of Cocaine

Leon challenges his conviction for possession with intent to distribute and distribution of the kilo of cocaine distributed by Malpezzi to Ashley and DEA Agent Lee. Leon first contends that the government did not show that he was "capable of exercising dominion and control over the contraband," United States v. Penagos, 823 F.2d 346, 350 (9th Cir. 1987), and that absent such a showing his conviction on counts three and four, for possession with intent to distribute and distribution of cocaine, must be reversed. As a co-conspirator, however, Leon was vicariously liable for the substantive acts of his co-conspirators which were committed in furtherance of the conspiracy, fell within the scope of the unlawful plan, and could have been reasonably foreseen as a necessary or natural consequence of the conspiracy. Pinkerton v. United States, 328 U.S. 640 (1946); United States v. Thomas, 887 F.2d 1341, 1345 (9th Cir. 1989). The district court instructed the jury on this theory, and the jury may have properly considered and relied on it. R.T., vol. 25, at 44-45.

Leon responds that, for the reasons outlined above, he was not a member of the conspiracy and therefore that he cannot be held vicariously liable under Pinkerton. This contention fails, of course, once Leon is determined to have been a conspirator. Perhaps recognizing this possibility, Leon also contends that it was not reasonably foreseeable that Malpezzi would provide Ashley with a kilogram of cocaine. Leon characterizes Malpezzi's prospective role as that of a purchaser, and concludes therefor that it was unforeseeable that Malpezzi would supply, rather than purchase, cocaine. Malpezzi allegedly provided the cocaine at issue in order to pay for travel expenses incurred in furtherance of the conspiracy. Given the nature of the conspiracy, particularly considering that Malpezzi and Leon attempted to import hundreds of kilograms of cocaine for distribution, Leon's contention is not persuasive.

Leon next contends that he played a minor role in the conspiracy, and that he may therefore avoid vicarious Pinkerton liability on due process grounds, citing United States v. Johnson, 886 F.2d 1120, 11234 (9th Cir. 1989), and United States v. Alvarez, 755 F.2d 830, 850 (11th Cir. 1985). Leon does not, however, explain how due process considerations should insulate him from vicarious liability. Neither Johnson nor Alvarez supports Leon's contention.1 

Finally, the evidence supports the jury's verdict on a theory of aiding and abetting, on which the jury was also instructed. In light of the evidence outlined above, Leon's contention that his participation amounted only to mere presence and that there was no evidence that he shared in the criminal intent of the principal is unavailing. The court finds that a " 'rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,' " Litteral, 910 F.2d 547, 550, and thus that sufficient evidence supported Leon's conviction for possession with intent to distribute and distribution of cocaine.

4. The District Court Did Not Err in Allowing the Introduction of Evidence of Other Crimes Committed by Leon

A district court's decision to admit evidence is reviewed for an abuse of discretion. United States v. Marashi, 913 F.2d 724, 735 (9th Cir. 1990); United States v. Nadler, 698 F.2d 995, 1000 (9th Cir. 1983).

Leon contends that the district court erroneously admitted evidence of what the parties refer to as the "side deal". Appellant's Brief, at 24. This evidence pertained to the plan, discussed above, by which Ashley was to assist Leon and Malpezzi in disposing of 73 kilograms of cocaine they received as compensation for serving as brokers to another drug sale. Leon contends that this evidence should have been excluded as evidence of other crimes, wrongs, or bad acts under Fed.R.Evid. 404(b), and that its prejudicial impact substantially outweighed any probative value.

When the government seeks to introduce "other crimes" evidence under 404(b), it must establish that: (1) sufficient evidence supports the jury's finding that the defendant committed the other crime or act; (2) the other crime or act is not too remote; (3) the offenses are similar; (4) the prior act must be introduced in order to prove a material element of the case. United States v. Spillone, 879 F.2d 514, 518-19 (9th Cir. 1989).

Leon argues that the evidence was not "reasonably similar" to the offense charged because the conspiracy contemplated that he and Malpezzi would import cocaine from Bolivia whereas the "side deal" involved the two of them selling cocaine domestically, that the evidence was prejudicial, and that it was not introduced for proof of a material fact. See Appellant's Reply Brief, at 17.

The court finds that the "side-deal" was reasonably similar to the charged conspiracy. As the evidence unfolded, Leon adopted different roles of financier and purchaser, then assistant to other purchasers. But the consistent theme of the conspiracy was to import cocaine for distribution. The sale of cocaine, received from Leon's Bolivian connection, was reasonably similar to the conspiracy's overall purpose. Moreover, the evidence was admissible under Fed.R.Evid. 404(b) to show intent and absence of mistake given Leon's defense that he was a mere "bumbler" who was "actively attempting to avoid the Government agents." Appellant's Opening Brief, at 27; see R.T., vol. 26A, at 77, 87, 94. The court twice admonished the jury that the evidence was admissible for a limited purpose. R.T., vol. 3, at 64-65; R.T., vol. 11, at 102-03. For these reasons, the court finds that admission of the evidence was not an abuse of discretion.

AFFIRMED.

 *

David F. Levi, United States District Judge for the Eastern District of California, sitting by designation

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Johnson rejected a due process challenge to application of vicarious liability to co-conspirators for purposes of sentence enhancement under 18 U.S.C. § 924(c), pertaining to the use of a firearm in the commission of a crime of violence or a drug offense. In Alvarez, the Eleventh Circuit upheld a Pinkerton instruction where vicarious liability was imposed on several co-conspirators for the murder of a federal agent. The court reached this result even though the murder "was not within the originally intended scope of the conspiracy, but instead occurred as a result of an unintended turn of events." Alvarez, 755 F.2d at 850

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