Unpublished Disposition, 859 F.2d 155 (9th Cir. 1988)

MEMORANDUM^* 

Pedro Lara-Naranjo appeals his convictions for conspiracy to distribute cocaine, 21 U.S.C. § 846, and for distribution and aiding and abetting the distribution of cocaine, 21 U.S.C. § 841(a) (1). His pretrial motion to suppress $19,000 in cash seized was denied. We affirm.

Lara-Naranjo contends the $19,000 in cash seized from Flores' automobile was irrelevant and inadmissible evidence. We disagree. " [A] district court's ruling to admit evidence and determine relevancy should not be disturbed unless there is a clear abuse of discretion." United States v. Cox, 633 F.2d 871, 874 (1980), cert. denied, 454 U.S. 844 (1981).

The $19,000 clearly meets the relevancy requirements of Fed.R.Evid. 401. Lara-Naranjo's car was followed to Flores' residence. The money was found in Flores' car which was parked near appellant's car. Fixen's business card was found near the money. This evidence makes appellant's conspiracy to distribute drugs and distribution of drugs more probable than it had been before admission of the evidence. See United States v. Federico, 658 F.2d 1337, 1341-42 (9th Cir. 1981). The cash was relevant. There was no abuse of discretion in receiving it.

Lara-Naranjo also contends evidence of the $19,000 in cash was improperly admitted because the government had forfeited the cash actually seized before trial. "When the government loses or destroys tangible evidence prior to trial, a motion to suppress ... will be granted by the trial court if the defendant can show (1) bad faith or connivance on the part of the government, and (2) that he was prejudiced by the loss or destruction of the evidence." United States v. Loud Hawk, 628 F.2d 1139, 1146 (9th Cir. 1979), cert. denied, 445 U.S. 917 (1980).

Lara-Naranjo fails to demonstrate either the government's bad faith or prejudice. The government held the cash seized from Flores' car for almost two years. During that time Lara-Naranjo did not request inspection of the money. The cash was forfeited to the United States pursuant to applicable federal law. Moreover, Lara-Naranjo fled the jurisdiction shortly before trial was to begin in February 1985 and remained a fugitive until April 1987. There is nothing about these facts which suggests bad faith or connivance on the part of the government.

Lara-Naranjo also fails to demonstrate prejudice by the loss of the evidence. Although the cash was central to the government's case, testimony about the cash was probative and reliable. See United States v. Tercero, 640 F.2d 190, 192-93 (9th Cir. 1980), cert. denied, 449 U.S. 1084. Also, we see no factual inferences or kinds of proof lost to Lara-Naranjo as a result of the missing evidence. See id.

Finally, Lara-Naranjo contends there was insufficient evidence to support his convictions for conspiracy to distribute cocaine and aiding and abetting the distribution of cocaine.

In determining the sufficiency of the evidence, the standard of review is whether viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the elements of the crime. United States v. Sharif, 817 F.2d 1375, 1377 (9th Cir. 1987). "Once the evidence establishes that a conspiracy exists, only a slight connection to the conspiracy is necessary to convict a defendant of knowing participation in it." United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, 107 S. Ct. 1309 (1987). The agreement to accomplish an illegal objective may be inferred from circumstantial evidence. United States v. Kiriki, 756 F.2d 1449, 1453 (9th Cir. 1985).

The evidence showed the following facts: An order for a kilogram of cocaine was placed with Fixen by the informant. A Latin male driving a Volkswagen met Fixen, entered his car carrying an attache case and a package wrapped in plastic. Shortly thereafter, after being kept under constant surveillance, Fixen's car was stopped and a kilo of cocaine was found in a plastic bag. The Volkswagen driven by Lara-Naranjo was followed to Flores' house. Present at the house was Montes whose fingerprint was found on the container of cocaine found in Fixen's car. Fixen's business card and $19,000 in cash were found in Flores' car.

A jury could easily infer from this circumstantial evidence that Lara-Naranjo both conspired to distribute cocaine and aided and abetted its distribution. See United States v. Guzman, No. 87-5047, slip op. at 7203-7204 (9th Cir. June 16, 1988) (conviction for conspiracy to possess with intent to distribute cocaine upheld where X placed package in BMW, drove to a parking lot where he met defendant next to Toyota van; X and defendant switched cars and defendant brought package from BMW to tractor-trailer rig where defendant was seen walking between the van and rig; defendant left in BMW and X left in the van which was later found to contain boxes of cocaine). Cf. United States v. Penagos, 823 F.2d 346 (9th Cir. 1987) (conviction for conspiracy to possess with intent to distribute drugs reversed where defendant accompanied drug dealers but evidence failed to show he either handled boxes or packages containing cocaine or transported cocaine).

Lara-Naranjo's reliance on United States v. Weaver, 594 F.2d 1272 (9th Cir. 1979) is misplaced. Unlike Weaver, where there was no evidence that defendant touched the package containing drugs, here there is considerable evidence that Lara-Naranjo personally delivered the drugs to Fixen.

The convictions are AFFIRMED.