Unpublished Disposition, 863 F.2d 887 (9th Cir. 1985)

MEMORANDUM^** 

Appellant Mohammed Rahimi-Ardebili appeals from his conviction for conspiracy to possess heroin with intent to distribute and possession of heroin with intent to distribute in violation of 21 U.S.C. §§ 841(a) (1) and 846. We affirm.

FACTS

Rahimi-Ardebili's sole contention on appeal is that the evidence presented at trial is insufficient to sustain his convictions. This argument requires us to examine the facts in some detail.

The events directly relating to Rahimi-Ardebili's conviction occurred on March 22, 1985. At 2:15 P.M., co-defendant Sattar Nadjmehchi met with undercover Drug Enforcement Administration (DEA) agent Gene Sugimoto and a confidential informant at a Los Angeles hotel to discuss a heroin sale by Nadjehchi to Sugimoto. Nadjmehchi left at approximately 3:00 P.M., promising to return at 6:00 P.M. to continue the transaction. Nadjmehchi drove to the apartment of co-defendant Javad Ebtehaj-Rashti.

Between 3:00 and 5:40 P.M., six telephone calls were placed between the residences of Ebtehaj-Rashti and Rahimi-Ardebili.

At approximately 6:00 P.M., Nadjmehchi and Ebtehaj-Rashti met with Sugimoto at the hotel room. They agreed to deliver one-half kilogram of heroin to the confidential informant and another DEA agent at a designated street corner at 7:00 P.M., and then to receive payment of $75,000 at the hotel room. Nadjmehchi and Ebtehaj-Rashti left the hotel at about 6:20.

At about 6:30 P.M., Nadjmehchi and Ebtehaj-Rashti met with co-defendant Hamid Zamanian and Rahimi-Ardebili. After talking for approximately fifteen minutes, Zamanian and Rahimi-Ardebili got into Nadjmehchi's car. The four men drove to a McDonald's, where they stopped behind Zamanian's car. Zamanian got out and walked over to his car, while Nadjmehchi pulled away. Zamanian took a large purse from his car. Nadjmehchi came back around the block, picked Zamanian up, and then circled the block two more times. Zamanian and Rahimi-Ardebili got out and drove away in Zamanian's car. The two men drove to the hotel and went into the cocktail lounge.

Meanwhile, Nadjmehchi and Ebtehaj-Rashti proceeded to the designated street corner as planned. They pulled up alongside the DEA agent's car and gave the agent a package containing heroin. The confidential informant got into Nadjmehchi's car, and Nadjmehchi drove back to the hotel. The DEA agent called Sugimoto at the hotel to confirm receipt of the heroin. At 7:20 P.M., the confidential informant, Nadjmehchi and Ebtehaj-Rashti met Sugimoto in the hotel room. Sugimoto paid them. Nadjmehchi immediately gave Ebtehaj-Rashti $10,000 from this money, and later gave the informant $10,000 as well. After completing the sale, Nadjmehchi and Ebtehaj-Rashti met Zamanian and Rahimi-Ardebili for drinks at the hotel cocktail lounge.

At 7:45 P.M., Rahimi-Ardebili and Zamanian left the hotel in Zamanian's car. On directions from the DEA, Los Angeles police officers pulled the car over for a routine traffic stop. One officer checked Zamanian's identification and issued him a traffic citation. The other officer approached Rahimi-Ardebili on the passenger side. He observed Rahimi-Ardebili holding a three inch thick bag on his lap, and noticed currency in the bag. Rahimi-Ardebili zipped up the bag as the officer came closer. The officer asked Rahimi-Ardebili to step out of the vehicle. Rahimi-Ardebili did so, holding the bag close to himself under one arm. No arrest was made at this time, to avoid interference with the ongoing drug trafficking operation. Zamanian dropped Rahimi-Ardebili at his car, and the two drove off separately.

Rahimi-Ardebili and five other defendants were indicted on October 18, 1985. The indictment charged Rahimi-Ardebili with conspiracy to import heroin, conspiracy to possess heroin, importation of heroin, and possession with intent to distribute heroin. Rahimi-Ardebili pled not guilty to all of the charges.

At the close of the evidence, the court granted Rahimi-Ardebili's motion for a judgment of acquittal on the two counts charging conspiracy to import and importation of heroin. The jury found Rahimi-Ardebili and Zamanian guilty of conspiracy to possess and possession with intent to distribute heroin. Rahimi-Ardebili was sentenced to three years in prison on the conspiracy count, and five years probation on the possession count, to run concurrently with the custody portion of the sentence. Rahimi-Ardebili timely appeals.

DISCUSSION

In determining whether a jury verdict rests on sufficient evidence, this Court is limited to a determination of whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original), reh'g denied, 444 U.S. 890 (1979). The evidence and all reasonable inferences from the evidence must be viewed in the light most favorable to the verdict. United States v. Spetz, 721 F.2d 1457, 1477 (9th Cir. 1983).

II. Sufficiency of the Evidence for Conspiracy Conviction

Rahimi-Ardebili first contends that the evidence is insufficient to sustain his conviction for conspiracy under 21 U.S.C. § 846. To establish the existence of a conspiracy, the government must show an agreement to accomplish an illegal objective, one or more acts in furtherance of the illegal purpose, and the intent to commit the underlying offense. United States v. Becker, 720 F.2d 1033, 1035 (9th Cir. 1983).

The government produced ample evidence indicating the existence of a conspiracy to possess and distribute heroin, centering on the completion of a heroin transaction between Nadjmehchi, Ebtehaj-Rashti and undercover agents.

Once a conspiracy is shown to exist, evidence establishing a defendant's connection with the conspiracy beyond a reasonable doubt, even though the connection is slight, is sufficient to convict a defendant of knowing participation in the conspiracy. United States v. Taylor, 802 F.2d 1108, 1116 (9th Cir. 1986), cert. denied, --- U.S. ----, 107 S. Ct. 1309 (1987).

In this case, a flurry of phone calls was made between Rahimi-Ardebili's residence and the residence of a co-conspirator. The phone calls occurred in the short interval between Nadjmehchi's two meetings with Sugimoto in preparation for the final transaction. Rahimi-Ardebili met with three co-conspirators and was present when the purse presumably containing the heroin was transferred between Zamanian's car and Nadjmehchi's. He accompanied Zamanian to the hotel, and met Nadjmechi and Ebtehaj-Rashti in the hotel lounge after the deal was completed. He was seen in possession of a large bag containing currency just fifteen minutes after leaving the hotel.

While mere proximity to the scene of illicit activities does not establish culpability and, without more, does not establish the necessary slight connection to a conspiracy, a defendant's presence may support the inference of involvement when viewed in the context of other evidence. United States v. Reese, 775 F.2d 1066, 1071-72 (9th Cir. 1985). Here, the jury knew that several phone calls were made between Rahimi-Ardebili's residence and Ebtehaj-Rashti's shortly before the 6:00 P.M. meeting with Sugimoto and the ultimate sale of the heroin. The jury knew Rahimi-Ardebili had possession of a large bag containing currency shortly after the completion of the sale. Taken together, the jury could infer involvement from these facts.

Rahimi-Ardebili asserts that the cases of United States v. Penagos, 823 F.2d 346 (9th Cir. 1987) and United States v. Lopez, 625 F.2d 889 (9th Cir. 1980) support reversal of his conviction. Neither case involved the same quantum of evidence present here.

In Penagos, the defendant's participation was limited to (1) looking up and down the street outside an apartment building while a box containing cocaine was transferred between the cars of two dealers preceding delivery to the buyer; (2) riding in a car with one of the dealers and a customer, who emerged from the car with a paper bag containing cocaine; and (3) making calls from a public telephone while a dealer was also making calls from another public telephone. In Penagos, however, there was no evidence that the defendant's telephone calls were to persons involved with drug sales, whereas in this case the calls to and from Rahimi-Ardebili's residence shortly before the "deal went down" were shown to have been with two other co-conspirators. The timing of the calls, in conjunction with Nadjmehchi's promise to Sugimoto to return by 6:00 P.M. to continue the transaction, allows the jury to infer that they were more than mere coincidence.

More significantly, the defendant in Penagos was not shown to have been paid for his involvement or to have had any other interest in the outcome of the conspiracy. In this case, by contrast, the evidence supports the inference that Rahimi-Ardebili was paid $10,000 for his role in the sale or was in custody of money from the sale. The court in Penagos found the defendant's behavior there to be "perfectly consistent with that of an innocent person having no stake or interest in drug transactions." 823 F.2d at 349. Here, the evidence against Rahimi-Ardebili was sufficient for a jury to find beyond a reasonable doubt that he had a stake and interest in the heroin transaction.

Lopez is distinguishable on similar grounds. In that case, defendant's actions consisted of nothing more than exiting and walking around the front yard of a house in which a drug deal was being consummated, and being a passenger in a car which was found to contain purchase money, heroin, and a loaded pistol. None of the incriminating objects were on the person of the defendant; in fact, the heroin and pistol were not even in open view. While defendant in that case stated to the police that he "knew what was going down," the prosecution failed to show his involvement in negotiations, delivery, or discussions of heroin, or that he had any financial interest in the deals. The evidence proved only mere association with conspirators, which is insufficient to establish guilt. In this case, Rahimi-Ardebili's possession of the purchase money is sufficient to allow the jury to infer both that Rahimi-Ardebili had a financial interest, an element missing in Lopez, and that the telephone calls made from Rahimi-Ardebili's residence to co-conspirators facilitated the delivery of the heroin.

III. Sufficiency of Evidence for Possession Conviction

Rahimi-Ardebili also contends that the evidence was insufficient to support his conviction for the substantive crime of possession with intent to distribute. A conspirator is liable for substantive offenses committed by co-conspirators in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647-48 (1946); United States v. Arbelaez, 719 F.2d 1453, 1459 (9th Cir. 1983). Because a Pinkerton theory instruction was given to the jury at trial, they could convict on that basis.

AFFIRMED.