Unpublished Disposition, 848 F.2d 199 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellant,v.Jose Henry CASTELLANOS, Defendant-Appellee.

No. 87-5243.

United States Court of Appeals, Ninth Circuit.

Submitted May 6, 1988.^* Decided May 20, 1988.

Before GOODWIN and CYNTHIA HOLCOMB HALL, Circuit Judges, and ALFREDO C. MARQUEZ,^***  District Judge.

This is an appeal by the government from an Order of the District Court granting defendant Castellanos a new trial.

ISSUE PRESENTED:

Was the decision of the District Court granting defendant's Motion for a New Trial an abuse of discretion?

STATEMENT OF THE CASE:

Defendant, together with two co-defendants, was indicted for conspiracy to possess and distribute cocaine, 21 U.S.C. § 846, and possession with intent to distribute four kilograms of cocaine, 21 U.S.C. § 841(a) (1). The two co-defendants pled guilty to the conspiracy charge which does not carry a mandatory minimum sentence. Defendant rejected this offer and proceeded to trial. Castellanos was found guilty on the substantive count of possession with intent to distribute four kilograms of cocaine. This count carries a mandatory minimum five year sentence. The jury was unable to reach a verdict on the conspiracy count.

The defendant filed a Motion for a New Trial, claiming that the verdict should be overturned because it was against the weight of the evidence and because the jury deadlocked on the conspiracy charge.

After hearing argument, the District Court denied the Motion for a New Trial. The Court stated that there was testimony which, if believed by the jury, was sufficient for the jury reasonably to have found the defendant guilty of the substantive count beyond a reasonable doubt. The Court also found that there was no incompatibility or inconsistency between the guilty verdict on the substantive count and the hung jury on the conspiracy count.

The record reflects that the District Judge was concerned that the two co-defendants had pled to a charge which did not provide for a mandatory minimum five years and that he was going to have to impose a five year minimum sentence as to this defendant. He obviously felt that this was an injustice and had been concerned about it before the time for sentencing and the arguments on the Motion for a New Trial were heard. The trial judge stated: "I had [justice] very much in mind in considering the Motion for [a] New Trial, but I would be derelict in my duty if I granted purported [ly] on the merits the Motion for a New Trial when it should not be granted. For that reason, although the Court entertained such an approach, [I] rejected it." After asking the defendant to address the Court before imposing sentence, however, the Court reversed its ruling on the Motion for a New Trial and granted the motion.

STANDARD OF REVIEW:

Decisions of the District Court Judge relating to Fed. R. Crim. P. 33 new trial motions are reviewed only for abuse of discretion. United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986).

SUFFICIENCY OF THE EVIDENCE:

When the jury has found a defendant guilty and the defendant moves for a new trial based on the sufficiency of the evidence, the Court "must determine, after reviewing the evidence in the light most favorable to the government, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 821 (9th Cir.), cert. denied, 471 U.S. 1139 (1985). A defendant's Motion for a New Trial should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict. Id.

The evidence during the trial showed that undercover agents met with co-defendant Ruiz on several occasions to buy small quantities of cocaine and to discuss the purchase of several kilograms of cocaine. On January 15, 1987, the undercover agents met with Ruiz and co-defendant Morga. Cash was offered by the undercover officers and an agreement was reached to drive to a nearby gas station for the exchange of the money for the cocaine.

The agents drove to the gas station and later Morga and defendant Castellanos arrived at the gas station in a pick-up truck. Castellanos was driving. Defendant and Morga left the truck and approached the car in which the undercover agents were sitting. Both men gestured for the agents to leave the car and join them. Defendant and Morga spoke the word "cocaine" to the officers. One undercover agent went to the pick-up truck with the defendant and Morga. Defendant walked to the driver's side of the truck, unlocked the door, and lifted a box from the floor of the truck, opened it, and one by one displayed four 1 kilogram packages of cocaine to the undercover agent. Shortly afterwards an arrest signal was given and the defendants were arrested.

Defendant testified that he was unaware of what was transpiring, had been asked by "the Spaniard", a man he had known for about six weeks, to do him a favor and drive Morga to some location. He claimed he had never met Morga and that shortly after getting in the truck with Morga, Morga told him to turn into the gas station. Obviously, the jury did not believe the defendant's story and found him guilty of the substantive count, possession with intent to distribute.

There was more than adequate evidence from which the jury could reasonably conclude beyond a reasonable doubt that the defendant was guilty of the substantive count.

INCOMPATIBILITY OF THE VERDICTS:

The district court found that there was no "incompatibility, inconsistency, between the findings and the determinations, verdict made, as to warrant a new trial and hence the motion for new trial is denied." This court has held that a jury's inability to reach a verdict on one count is not the equivalent of an acquittal on that charge and does not, by definition, cause an inconsistent verdict. United States v. Steele, 785 F.2d 743, 750 (9th Cir. 1986). Moreover, even if the verdicts could not rationally be reconciled, the conviction must stand. Id.; see United States v. Powell, 469 U.S. 57, 69 (1984). Thus, there is no merit to Castellanos' argument.

The record reflects that the District Judge granted the new trial solely to avoid the mandatory minimum sentencing provisions. The Court gave no reason for reversing itself on the Motion for a New Trial after denying it. The trial court abused its discretion in granting the new trial in order to avoid imposing the mandatory sentence. See generally Gore v. United States, 357 U.S. 386, 393 (1958) (Supreme Court without power to revise sentences); United States v. Beverly, 416 F.2d 263, 265 (9th Cir. 1969) (Congress, not the Courts, determines the range of penalties for offenses)

The Order of the trial Court granting a new trial is reversed and this matter is remanded for sentencing.

REVERSED AND REMANDED.