Unpublished Disposition, 848 F.2d 199 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 848 F.2d 199 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Alvin HEGGE, Defendant-Appellant.

No. 86-3120.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 1988.Decided May 23, 1988.

Before BEEZER, CYNTHIA HOLCOMB HALL and WIGGINS, Circuit Judges.


MEMORANDUM* 

Defendant-appellant Alvin Hegge appeals from his conviction for conspiracy to possess cocaine with intent to distribute under 21 U.S.C. §§ 841(a) (1) & 846. Appellant contends that there was insufficient evidence to convict him of this offense. Appellant further contends that the district court should have granted a mistrial after a poll of the jury revealed lack of unanimity in the original verdict of not guilty. Finally, appellant argues that the Allen charge had an unduly coercive effect on the jurors, invalidating their guilty verdict. We have jurisdiction under 28 U.S.C. § 1291. We affirm.

We review the sufficiency of the evidence, viewing the evidence in the light most favorable to the verdict, to determine whether the jurors could reasonably have concluded that guilt was established beyond a reasonable doubt. United States v. Anderson, 642 F.2d 281, 285 (9th Cir. 1981). We review a district court's decision to grant or deny a mistrial for an abuse of discretion. See United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985); United States v. Freedson, 608 F.2d 739, 741 (9th Cir. 1979) (per curiam).

Pursuant to 21 U.S.C. § 841(a) (1) & 846, it is unlawful for any person to conspire knowingly or intentionally to possess a controlled substance with intent to distribute it.

Appellant admits that he entered a conspiracy to travel from Washington to Indiana for the purpose of robbing two residences where a known drug dealer might have been storing money and drugs. The goal of the conspiracy was financial gain, either by taking cash or by stealing drugs that the conspirators could then sell.

Appellant contends that these facts fail to establish the requisite specific intent for a conspiracy to possess cocaine with intent to distribute. Appellant asserts that there was only a conspiracy to commit robbery. The question is whether there was a conspiracy to distribute cocaine even though the appellant was to do all the distributing. To establish such a conspiracy it is not essential to show an explicit agreement of each of the conspirators to possess cocaine with intent to distribute. It is enough to show that the conspirators knew or had reason to know the scope of the conspiracy and had reason to believe that their illegal gains depended on the success of the entire venture. United States v. Perry, 550 F.2d 524, 528-29 (9th Cir.), cert. denied, 431 U.S. 918 (1977). Here Perry requires only that the co-conspirators know that appellant would possess and distribute drugs and that their success (financial gain) depended on money from the sale. Appellant, as well as the other members of the conspiracy, was aware of the high probability that cocaine would be found at the residence of a known drug dealer. In fact, the conspirators were planning on it. If they found cocaine, as anticipated, they were not going to leave it behind. Thus, the conspirators comprehended that someone would have to sell the drugs for them, and they all agreed that appellant would be that person. Under Perry, this agreement would constitute a conspiracy to possess cocaine with intent to distribute. That only the appellant was willing to engage in the actual distributionof drugs does not prevent their agreement from being the charged conspiracy.

The conviction is based on the testimony of co-conspirators, which is sufficient to support the conviction provided the testimony is not incredible or unsubstantial on its face. United States v. Lopez, 803 F.2d 969, 973 (9th Cir. 1986), cert. denied, 107 S. Ct. 1958 (1987); see United States v. Clarillo, 446 F.2d 645, 646 (9th Cir. 1971) (per curiam). In fact, the uncorroborated testimony of a single accomplice is sufficient. United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir.), cert. denied, 449 U.S. 856 (1980); see United States v. Hutchinson, 488 F.2d 484, 490 (8th Cir. 1973), cert. denied, 417 U.S. 915 (1974). Here, there is testimony of four co-conspirators that appellant intended to distribute the cocaine that was to be stolen. This testimony is not incredible or unsubstantial on its face. The testimony reveals a very believable plan of how drugs stolen from a dealer were to be distributed, and comes directly from members of the conpiracy who have first-hand knowledge of the information.

Accordingly, the testimony of Jensen, Beach, Howard, and Link was sufficient to support the appellant's conviction.

After a verdict is returned and before it is recorded, the judge may poll the jury upon his own motion. If the poll reveals lack of unanimity, the judge may either direct the jury to deliberate further or discharge the jury. Fed. R. Crim. P. 31(d). Therefore, the district court had the choice to not grant a mistrial when the poll revealed that the jury had not reached an unanimous decision. The district court acted within its discretion because the judge might have concluded that further deliberations could produce either a clear verdict or clear disagreement. United States v. Freedson, 608 F.2d 739, 741 (9th Cir. 1979) (per curiam).

We review an Allen charge to determine the propriety of the charge "in its context and under all the circumstances," to see if it had a coercive effect upon the jury. Lowenfield v. Phelps, 108 S. Ct. 546, 550 (1988) (citing Jenkins v. United States, 380 U.S. 445, 446 (1965)); United States v. Beattie, 613 F.2d 762, 764 (9th Cir.), cert. denied, 446 U.S. 982 (1980). We have reviewed the record and conclude that under all the circumstances the Allen charge was not unduly coercive. The duration of the jury's further deliberations does not persuade us otherwise. The charge served its purpose by assisting the jury in reaching an unanimous decision.

The appellant's supplemental brief raises numerous issues that all lack merit.

The judgment of the district court is AFFIRMED.

 *

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

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