Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

MEMORANDUM^* 

Jaime Diaz-Torres appeals his convictions for (1) conspiracy to possess cocaine with intent to distribute it; (2) conspiracy to distribute cocaine; (3) possession of cocaine with intent to distribute it; and (4) distribution of cocaine. We affirm.

FACTS AND PROCEEDINGS

On February 18, 1987, Diaz-Torres went with his stepfather and brother-in-law to a hotel, where they met Salvador Chavez. Chavez told Diaz-Torres to carry a bag into the hotel from the truck in which Diaz-Torres had been riding. Chavez testified that, as the four men walked towards the hotel, he told the other three men that (1) they should bring no guns into the hotel; (2) this transaction could mean future business with these same buyers; (3) the buyers were large-scale marijuana growers from Hawaii who expected a good product; and (4) the drugs they were delivering were going to be sold in Japan.

In the hotel room, the four men met with three undercover DEA agents. At Diaz-Torres' stepfather's direction, Diaz-Torres emptied the contents of the bag he carried (five wrapped packages of cocaine) onto a bed. One DEA agent testified that during the transaction, Diaz-Torres appeared to be "quite calm" and "attentive." Diaz-Torres never tried to leave the hotel room, or exhibited any surprise. After the drug sale was completed, the DEA agents arrested all four.

At trial, Diaz-Torres twice moved for a judgment of acquittal pursuant to Fed. R. Crim. P. 29(a). The court denied both motions. During the trial, Diaz-Torres claimed that he realized that he was involved with a drug transaction only after he dumped the cocaine packages out of the bag. He claimed he never (1) asked his stepfather where they were going; (2) realized what was in the bag although it was in the truck with him; (3) heard Chavez's comments; or (4) questioned either his stepfather's or Chavez's directions even though he allegedly had no idea about what was going on.

The court gave a Jewell instruction to the jury (if the defendant is actually aware of facts indicating a high probability of illegality but purposely fails to investigate in order to stay ignorant of the illegality, that defendant is deemed to have knowledge of the illegality. See United States v. Jewell, 532 F.2d 697, 700 (9th Cir.) (en banc), cert. denied, 426 U.S. 951 (1976)). The jury convicted Diaz-Torres on all counts. Diaz-Torres timely appeals.

DISCUSSION

Diaz-Torres contends that the district court erred in denying his Rule 29(a) motion for judgment of acquittal for insufficient evidence to sustain the conviction. We disagree.

Once the existence of a conspiracy is proven, evidence establishing a defendant's slight connection with the conspiracy is sufficient to convict him of knowing participation. United States v. Berberian, No. 86-5073, slip op. at 7668 (9th Cir. June 28, 1988). And a defendant who participates in a conspiracy is vicariously liable for the substantive acts of his or her co-conspirators so long as those acts are committed pursuant to and in furtherance of the conspiracy. See United States v. Lester, 749 F.2d 1288, 1298 (9th Cir. 1984).

Here, sufficient evidence exists. Diaz-Torres concedes that a conspiracy existed. The government presented sufficient evidence establishing Diaz-Torres's connection with that conspiracy. Government witnesses testified that Diaz-Torres (1) arrived at the hotel with two co-conspirators; (2) heard Chavez's comments about the drug deal; (3) carried a bag containing cocaine; (4) obeyed his stepfather's order to dump the bag's contents onto the bed; (5) appeared calm and attentive during the drug deal; (6) never seemed surprised by what was going on; and (7) never tried to leave the hotel room. And because sufficient evidence exists to support Diaz-Torres's participation in a conspiracy to possess and distribute cocaine, sufficient evidence exists to support his conviction for the two substantive counts charged in the indictment.

Diaz-Torres contends that the district court erred in giving the jury a Jewell instruction. Although we find that the district court erred in giving the Jewell instruction, we conclude that the error was harmless.

A Jewell instruction should not be given where the evidence points to actual knowledge rather than deliberate ignorance. See United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.), cert. denied, 108 S. Ct. 2880 (1988).

Here, we conclude that the district court erred when it gave the Jewell instruction because the evidence points to actual knowledge rather than deliberate ignorance. However, because there was overwhelming evidence that (1) Diaz-Torres had more than a slight connection with the conspiracy, and (2) contradicted Diaz-Torres' story about having no actual knowledge about the drug deal, the court's decision to issue a Jewell instruction was logically harmless to Diaz-Torres beyond any reasonable doubt. See id.

Diaz-Torres draws our attention to United States v. Beckett, 724 F.2d 855, 856 (9th Cir. 1984). While we think the question is a close one and will not be reluctant to reverse for a Jewell violation under other circumstances, we are persuaded that Alvarado controls in this instance.

AFFIRMED.