Unpublished Disposition, 933 F.2d 1018 (9th Cir. 1991)

No. 89-30367.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and MacBRIDE,^**  District Judge.

MEMORANDUM^*** 

Guillermo Zambrano-Zaragoza challenges his conviction for possession of cocaine with intent to distribute on three grounds: (1) that there was insufficient evidence for his conviction, (2) that the district court erred by refusing to instruct the jury on the lesser-included offense of simple possession, and (3) that the police illegally stopped his car without probable cause. We now affirm.

* A defendant who claims that there was insufficient evidence to convict him bears a heavy burden:

There is sufficient evidence to support [the defendant's] conviction if, viewing the evidence in the light most favorable to the government and respecting the jury's ability to judge the credibility of the witnesses, resolve factual conflicts, and draw inferences, a rational jury could have found the elements of the crime beyond a reasonable doubt.

United States v. Feldman, 853 F.2d 648, 654 (9th Cir. 1988), cert. denied, 489 U.S. 1030 (1989); see also United States v. Gillock, 886 F.2d 220, 221-22 (9th Cir. 1989) (per curiam). Here, the evidence revealed that the defendant drove to an address that the police, less than two hours before, had identified as being connected with cocaine trafficking; that he exited his vehicle and entered the apartment in question; that he emerged moments later carrying a brown paper sack; that, after he was stopped by agents of the DEA, a brown paper sack was discovered under a floor mat in his car; and that the sack contained approximately one pound of a substance later determined to be 93% pure cocaine. Viewing this and other evidence in the light most favorable to the government, we are unable to conclude that it was irrational for the jury to determine that Zambrano was guilty as charged.

II

Zambrano next contends that the district court erred in declining to instruct the jury on the lesser-included offense of simple possession.

A two-part test is used to determine whether a defendant is entitled to a lesser included offense instruction: " 'First, the defendant must identify the lesser included offense. Second, the defendant must demonstrate that a rational jury could find the defendant guilty of the lesser included offense but not the greater.' "

United States v. Sotelo-Rivera, 906 F.2d 1324, 1328 (9th Cir. 1990) (quoting United States v. Linn, 880 F.2d 209, 218 (9th Cir. 1989) (quoting United States v. Pace, 833 F.2d 1307, 1314 (9th Cir. 1987), cert. denied, 486 U.S. 1011 (1988))) (emphasis added). Zambrano has satisfied the first part of this test but not the second.

On the evidence adduced at trial, a rational jury could not have found Zambrano guilty of possession without also finding him guilty of possession with the intent to distribute. The brown paper sack that was found in Zambrano's possession contained fifteen, one-ounce plastic bags of cocaine. Zambrano himself testified that he went to pick up the sack with the intent to deliver it to "an intimate friend." When it instructed the jury, the court explained that " [t]he term 'distribute' means to deliver cocaine, a controlled substance to the possession of another person, which in turn means the actual, constructive, or attempted transfer of a controlled substance," and Zambrano did not object to this instruction. Record at 31, Jury Instruction No. 12. In short, the theory of Zambrano's defense was that he did not know what was in the sack and therefore did not knowingly possess the cocaine, but he never contended that he did not intend to distribute the sack; rather, he admitted this fact. A jury that decided to reject his defense would therefore logically have to find possession with intent to distribute.

"Generally, the refusal to give a particular instruction is not subject to objection if the charge given adequately covers the theory of defense." Sotelo-Rivera, 906 F.2d at 1328. Whether reviewed for an abuse of discretion or de novo, the district court's refusal to give the lesser-included offense instruction was not erroneous. See id. at 1327 (noting that this court has not resolved the intracircuit conflict over whether to review the refusal to give a proposed lesser-included offense instruction for an abuse of discretion or de novo and affirming on the basis of de novo review).

III

Finally, Zambrano contends that the police did not have probable cause to stop his vehicle after they observed him leaving the address under surveillance with a brown paper sack in his possession. In light of the fact that, only a short time before, the officers had arrested another suspect whom they had observed leaving the very same apartment with a paper bag that, upon arrest, turned out to contain three kilos of cocaine, the contention that the officers lacked probable cause to stop Zambrano is facially meritless.¹ 

AFFIRMED.