Unpublished Disposition, 861 F.2d 268 (9th Cir. 1988)

MEMORANDUM^** 

Andrew Joseph Casarez was convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) (1982), and conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. § 846 (1982). He contends that the evidence introduced at trial was sufficient to support either conviction, and that the trial court erred in admitting evidence of his possession of a half-smoked marijuana cigarette at the time of his arrest. We affirm both convictions.

We uphold a conviction against a sufficiency of the evidence challenge if, viewing the evidence in the light most favorable to the government, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of each element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Penagos, 823 F.2d 346, 347 (9th Cir. 1987).

To sustain a conviction for possession with intent to distribute marijuana, the government must prove that the defendant knowingly possessed marijuana and that he intended to distribute it. See United States v. Walitwarangkul, 808 F.2d 1352, 1353 (9th Cir.), cert. denied, 107 S. Ct. 1909 (1987). The government introduced unrebutted eyewitness testimony indicating that appellant removed brush and clothing concealing packages of marijuana and held one of the packages in his hand. When confronted by border patrol agents, Casarez rapidly attempted to cover up the packages and spontaneously denied any wrongdoing. A rational jury could easily infer that Casarez knew the packages contained marijuana. An agent of the Drug Enforcement Administration testified that the packages contained approximately 88 pounds of marijuana, worth approximately $600 per pound. A jury may infer intent to distribute from the quantity and value of the drug possessed. United States v. Savinovich, 845 F.2d 834, 838 (9th Cir. 1988). The evidence introduced at trial was thus sufficient to support Casarez's conviction for possession with intent to distribute.

B. Conspiracy to Possess with Intent to Distribute

To sustain a conspiracy conviction, the government must prove the existence of (1) an agreement to accomplish an illegal objective; (2) one or more acts in furtherance of the illegal purpose; and (3) the requisite intent to commit the underlying substantive offense. Penagos, 823 F.2d at 348. As discussed above, the government introduced sufficient evidence to enable a rational jury to find the second and third of these elements.

The evidence also supports a rational jury's determination that the government established the first element. An agreement need not be proved directly; it may be inferred from circumstantial evidence such as the conduct of the participants. Id.; United States v. Abushi, 682 F.2d 1289, 1293 (9th Cir. 1982). Uncontroverted evidence at trial indicated that Casarez drove a pickup truck into a canyon along the Mexican border, that footprints leading from the border to the marijuana had been left the evening before, and that an unidentified individual (who successfully fled) assisted Casarez in uncovering the marijuana. This evidence was certainly sufficient to allow a rational trier of fact to infer the existence of an agreement that included Casarez.

Border patrol agents discovered a half-smoked marijuana cigarette in Casarez's pocket at the time of his arrest. The cigarette was admitted into evidence over defendant's objection as probative of Casarez's knowledge and absence of mistake or accident. See Fed.R.Evid. 404(b). We review the admission of evidence under Rule 404(b) for abuse of discretion. United States v. Sarault, 840 F.2d 1479, 1485 (9th Cir. 1988).

Evidence of prior drug use is inadmissible in a prosecution for possession with intent to distribute. United States v. Mehrmanesh, 689 F.2d 822, 831-32 (9th Cir. 1982). Evidence of prior possession, however, is admissible. Id. at 832; United States v. Brown, 562 F.2d 1144, 1147-48 (9th Cir. 1977). While the distinction may be thin, it is dispositive. If evidence of prior possession may be admitted into evidence despite its prejudicial effect, evidence of contemporaneous possession, tending to show the defendant's knowledge of drugs and the unlikelihood that he possessed the drugs accidently, can hardly be excluded.

AFFIRMED.